Allowed

Hemang @ Bhurio Bhikhubhai Karsanbhai Jethva v. Police Commissioner - Ahmedabad City

Gujarat HC4 Sept 2014SCA/7151/2014

Case brief

AI extract

What is this about?

This special civil application challenges an order of preventive detention under the Gujarat Prevention of Anti Social Activities Act. The High Court quashed the detention order, holding that FIRs under the Bombay Prohibition Act alone were insufficient to establish a nexus with public order.

What did the court decide?

Order of detention dated 04.02.2014 quashed and set aside. Detenu to be set at liberty forthwith.

Hemang @ Bhurio Bhikhubhai Karsanbhai Jethva Vs… — Writ and Judicial Review | Gujarat HC (2014)

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C/SCA/7151/2014 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 7151 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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HEMANG @ BHURIO BHIKHUBHAI KARSANBHAI JETHVA....Petitioner(s)

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Versus

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POLICE COMMISSIONER - AHMEDABAD CITY & 2....Respondent(s)

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============================================= Appearance:

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MR PAWAN A BAROT, ADVOCATE for the Petitioner(s) No. 1 MR BIIPIN BHATT, AGP for the Respondent(s) No. 2

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=============================================

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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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This petition is directed against the order of detention dated 04.02.2014 passed by respondent authority, in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short” the Act) by detaining the detenu as a “bootlegger” as defined under Section 2(b) of the Act. Along with the order of detention, the petitioner is also served

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Page 1 of 3

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C/SCA/7151/2014 JUDGMENT

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with the grounds of detention. In the grounds of detention, there is a reference to the criminal cases pending against the petitioner. The cases are registered under the provisions of the Bombay Prohibition Act. It is alleged that the petitioner is dealing in country liquor.

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Learned advocate for the detenu submits that 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 detenu on various grounds mentioned in the memo of the petition. However, learned counsel for the detenu submits that, except FIRs registered under the Bombay Prohibition Act, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenu is a 'bootlegger' within the meaning of Section 2(b) of the Act and required to be detained as the detenu's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenu has placed reliance on judgment of the Apex Court in the case of Piyush Kantilal Mehta vs. Commissioner of police, AIR 1989 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. & J.B. Pardiwala, J].] in Letters Patent Appeal No.2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police ) which would squarely help the detenu.

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Learned Assistant Government Pleader submitted that registration of FIRs would go to show that the detenu had, in fact, indulged into such activities, which can be said to be disturbing the public health and public order and in view of sufficient material before

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C/SCA/7151/2014 JUDGMENT

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the detaining authority to pass the order of detention, no interference is called for by this Court in exercise of its power under Article 226 of the Constitution of India.

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Having heard the rival submissions of the parties and perused the record of the case, I am of the view that FIRs registered under the 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 No.2732 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 detenu 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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In the result, this Special Civil Application is allowed. Order of detention dated 04.02.2014 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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Hemang @ Bhurio Bhikhubhai Karsanbhai Jethva v. Police Commissioner - Ahmedabad City

Case brief

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Hemang @ Bhurio Bhikhubhai Karsanbhai Jethva v. Police Commissioner - Ahmedabad City

Case brief

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