Allowed

Mohmed Rizwan Munshibhai Shaikh v. State of Gujarat

Gujarat HC3 Sept 2014SCA/5817/2014

Case brief

AI extract

What is this about?

The High Court quashed a detention order passed under the Gujarat Prevention of Anti-Social Activities Act. The court held that the definition of a cruel person requires habitual involvement in animal cruelty offenses. Since only one offense was registered against the petitioner, the subjective satisfaction for detention was vitiated due to lack of repetitiveness. The detention order was set aside

What did the court decide?

The detention order dated 31.03.2014 is quashed and set aside. The detenu is ordered to be set at liberty forthwith.

Mohmed Rizwan Munshibhai Shaikh Vs… — Constitutional and Fundamental Rights | Gujarat HC (2014)

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C/SCA/5817/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 5817 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 ?	No
2 To be referred to the Reporter or not ?	No
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
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 ?	No
5 Whether it is to be circulated to the civil judge ?	No

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MOHMED RIZWAN MUNSHIBHAI SHAIKH....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. SOEB R. BHOHARIA, ADVOCATE for the Petitioner(s) No. 1 VALIMOHAMMED PATHAN, ADVOCATE for the Petitioner(s) No. 1 MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

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Date : 03/09/2014

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ORAL JUDGMENT

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By way of this petition, the detenu has challenged the order of detention dated 31.03.2014 passed by respondent authority, under the provisions of sub-sec (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA Act”).

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Page 1 of 3

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C/SCA/5817/2014 JUDGMENT

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Learned advocate appearing for the petitioner-detenu has invited my attention to the order of detention dated 02.04.2014 by which the detenu was arrested. The grounds of detaining the accused are that one offence was registered against the petitioner under the provisions of Section 5, 6(B)(1)(2)(3) and 8 of the Gujarat Animal Preservation Act, 1954 and Section 11(E)(L) of the Animal Cruelty Act and Section 335 and 336 of the B.P.M.C.Act and section 119 of the G.P.Act. He is, therefore, a “ cruel person ” as defined under Section 2(bbb) of the PASA Act.

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Learned advocate appearing for the petitioner has submitted that, except this solitary offence, there is no material with the detaining authority to detain the petitioner under the provisions of PASA Act. It is submitted that the order is vitiated because only on the basis of one offence registered against the petitioner, and in absence of any other material to show involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a cruel person. The definition of cruel person requires habitual involvement and, therefore, the subjective satisfaction and the consequential order are vitiated.

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Learned AGP appearing for the State has opposed this petition.

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Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of “cruel person” as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs as under:-

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“2(bbb) “cruel person” means a person who either by himself or as member or leader of a gang habitually

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Page 2 of 3

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C/SCA/5817/2014 JUDGMENT

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commits or attempts to commit abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom.LXXII of 1954)”.

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It is clear from reading of the definition that the person to be branded as a cruel person has to be either a member or leader of a gang habitually committing or attempting to commit or abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term “habitually” examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring one offence registered against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitual or repetitively involved in the offences.

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Under the circumstances, the subjective satisfaction that the petitioner is a cruel person on the basis of which he has been detained is vitiated.

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It is submitted by the learned advocate for the petitioner that detention order qua co-accused has been quashed by this Court today i.e.31.03.2014.

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In the result, this Special Civil Application is allowed. Order of detention dated 31.03.2014 passed by respondent authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in connection with any other case. Rule is made absolute. Direct service is permitted.

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(A.J.DESAI, J.)

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**_Kazi..._*

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Mohmed Rizwan Munshibhai Shaikh v. State of Gujarat

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Mohmed Rizwan Munshibhai Shaikh v. State of Gujarat

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