Allowed

Jivabhai Ratnabhai Mali v. State of Gujarat

Gujarat HC4 Sept 2014SCA/5367/2014

Case brief

AI extract

What is this about?

The Single Judge held that an FIR under the Bombay Prohibition Act alone is insufficient material to justify preventive detention under the Gujarat PASA Act as prejudicial to public order. Consequently, the detention order based solely on this FIR was quashed.

What did the court decide?

The impugned order of detention dated 31.03.2014 is quashed and set aside. The petitioner is ordered to be set at liberty forthwith if not detained for another case. Rule made absolute.

Jivabhai Ratnabhai Mali Vs State of Gujarat — Civil Procedure and Limitation | Gujarat HC (2014)

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C/SCA/5367/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 5367 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J.DESAI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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JIVABHAI RATNABHAI MALI....Petitioner(s)

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Versus

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STATE OF GUJARAT & 2....Respondent(s)

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Appearance:

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MR NASIR SAIYED, ADVOCATE for the Petitioner(s) No. 1 MR BIPIN BHATT ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 3

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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

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Date : 04/09/2014

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ORAL JUDGMENT

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C/SCA/5367/2014 JUDGMENT

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1.0 This petition is directed against the order of detention dated

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31.03.2014 passed by respondent No.2 – The District Magistrate,

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Kachchh-Bhuj in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short “the PASA Act”) by detaining the detenue as a “bootlegger” as defined under Section 2(b) of the Act. Along with the order of detention, the detenue is also served with the grounds of detention. In the grounds of detention, there is a reference to one criminal case pending against the detenue. The case is registered under the provisions of the Bombay Prohibition Act.

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2.0 Mr. Nasir Saiyed, learned advocate for the detenue submits that

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registration of FIR itself cannot lead to disturbance of even tempo of public life and therefore the public order. The order of detention is assailed by the detenue on various grounds mentioned in the memo of the petition. However, learned advocate for the detenue submits that, except FIR registered under the Bombay Prohibition Act, there was no other material before the detaining authority whereby it could be inferred

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C/SCA/5367/2014 JUDGMENT

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reasonably that the detenue is a 'bootlegger' within the meaning of

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Section 2(b) of the Act and required to be detained as the detenue's

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activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned advocate for the detenue has placed reliance on judgment of the Apex Court in the case

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of Piyush Kantilal Mehta vs. Commissioner of police, AIR 1989

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Supreme Court 491 and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. &

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J.B. Pardiwala, J].] in Letters Patent Appeal No.2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs.

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Commissioner of Police) which would squarely help the detenue.

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3.0 Mr. Bipin Bhatt, learned Assistant Government Pleader submitted

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that registration of FIR would go to show that the detenue had, in fact,

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indulged into such activities, which can be said to be disturbing the

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public health and public order and in view of sufficient material before

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the detaining authority to pass the order of detention, no interference is

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called for by this Court in exercise of its power under Article 226 of the

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Constitution of India.

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C/SCA/5367/2014 JUDGMENT

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4.0 Having heard the rival submissions of the parties and perused the

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record of the case, I am of the view that FIR registered under the

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Bombay Prohibition Act alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. On careful perusal of the material available on record and the ratio laid down by the Apex Court in the case of Piyush Kantilal Mehta (supra) and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police) , I am of the view that the activities of the detenue cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside.

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C/SCA/5367/2014 JUDGMENT

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