The High Court of Gujarat quashed a detention order under the Gujarat Prevention of Anti Social Activities Act, holding that two FIRs were insufficient to prove prejudice to public order. It also found the authority failed in application of mind. Petitioner set at liberty.
Order of detention dated 11.01.2018 quashed; detainee set at liberty forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/1358/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1358 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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ALTAF S/O RAIS SHEIKH
Versus
STATE OF GUJARAT
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Appearance:
MS SUBHADRA G PATEL(656) for the PETITIONER(s) No. 1 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the RESPONDENT(s) No. 1
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 3 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 17/04/2018
ORAL JUDGMENT
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C/SCA/1358/2018 JUDGMENT
conferred under section 3[1] / 3[2] of the Gujarat Prevention of Anti Social Activities Act, 1985 [for short the Act] by detaining the detenue as a bootlegger as defined under section 2[b] of the Act.
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and public order and in view of sufficient material before 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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offences, only because of non disclosure of proper information and in all such detention orders, such orders are generally quashed and set aside by the Court. It is also seen that because of quashing of previous detention order, competent authority could not consider the grounds of detention under such order which is already quashed as a ground for detention for subsequent offences by the same detenue. However, when competent authorities are not abiding by all other cited cases while passing the order of detention based upon two offences, it is surprising to note that at no point of time they have challenged the observation of any Court that when previous order of detention has been quashed, it cannot be considered in subsequent detention. It goes without saying that if a particular detenue continues to commit the similar offences repeatedly, and if he is required to be detained repeatedly then atleast at some point of time, the competent authority shall compile all the information and shall consider it for fresh detention order as and when necessary and shall produce all such information before the Court so as to avoid the quashing of such detention order. If competent authority fails to take up such exercise and when in impugned order of detention all such facts were not disclosed or considered for passing such order, the detention order is required to be dealt with as it is without considering the additional disclosure in affidavit-in-reply by the respondents.
7.1 In the present case, it seems that petitioner has been detained several times but at present, the detention order under challenge does not disclose all such facts so as to enable the petitioner to properly represent his case. Hence, there is no option but to consider that present order of detention is solely based upon two offences. Therefore,
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considering the settled legal position that no person can be detained for two offences, the Court has no option but to quash and set aside the order of detention, irrespective of quantity of LIQUOR found from the detenue and other material that might have been found in the affidavit in reply.
7.2 In view of above facts and circumstances, it would be necessary to observe that the competent authority is not precluded from disclosing all material facts while detaining the petitioner if so required for any offence that he might commit hereinafter. In other words, though impugned order is quashed and set aside at present, it would not come in way of the competent authority for quoting such FIR and order of detention, thereby to treat petitioner as a habitual offender in case of commission of offence repeatedly.
7.3No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching of or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question as to whether it was necessary to make an order of preventive detention. Since there is an allegation that the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. In the case on hand, the detaining authority failed to satisfy the court that the detaining authority so bore the question in mind and,
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therefore, the court is justified in drawing the inference that there was no application of mind by detaining authority to the vital question of whether it was necessary to preventively detain the detenue. It is also fruitful to refer to the decision of the Honble Apex Court rendered in the case of Rekha V/s. State of Tamil Nadu through Secretary to Government and another reported in (2011)5 SCC 244 wherein, it is observed by the Honble Apex Court that if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention can be taken recourse to.
(S.G. SHAH, J)
VARSHA DESAI
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3 issues framed by the court
Whether two FIRs registered under the Bombay Prohibition Act are sufficient material for detaining an alleged bootlegger as prejudicial to public order.
Whether the detaining authority failed to apply its mind by not disclosing full information about repeated offences in the detention order.
Whether preventive detention was justified when ordinary criminal proceedings were available.
Colour shows how this judgement treated each authority
Piyush Kantilal Mehta vs. Commissioner of PoliceReferred¶27
Piyush Kantilal Mehta vs. Commissioner of Police, reported in AIR 1989 S.C. 491 · Who else cites this
Anil Dey v. State of West BengalReferred¶27
Anil Dey v. State of West Bengal reported in AIR 1974 SC 832 · Who else cites this
Smt. Angoori Devi v. Union of IndiaReferred¶27
Smt. Angoori Devi v. Union of India reported in AIR 1989 SC 371 · Who else cites this
Darpan Kumar Sharma v. State of Tamil NaduReferred¶27
Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of Tamil Nadu reported in AIR 2003 SC 971 · Who else cites this
Aartiben vs. Commissioner of PoliceReferred¶27
Letters Patent Appeal No. 2732 of 2010 in Special Civil Application No. 9492 of 2010 [Aartiben vs. Commissioner of Police]
Rekha v. State of Tamil NaduReferred¶47
Rekha V/s. State of Tamil Nadu through Secretary to Government and another reported in (2011)5 SCC 244 · Who else cites this
3 provisions across 2 enactments
ALTAF S/O RAIS SHEIKH
STATE OF GUJARAT
S.G. SHAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
