A Single Judge of the Gujarat High Court examined the validity of a detention order passed under the Gujarat Prevention of Anti-Social Activities Act based solely on an FIR under the Bombay Prohibition Act.
The order of detention dated 22.12.2017 is quashed and set aside. The detenu is 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/241/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 241 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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PARESHBHAI SHAMBHUBHAI PATEL
Versus
DISTRICT MAGISTRATE
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Appearance:
SHAILESH R THAKORE(9310) for the PETITIONER(s) No. 1 MR VR JANI, AGP (1) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 03/04/2018
ORAL JUDGMENT
1.This petition is directed against the order of detention dated 22.12.2017 passed by respondent authority in exercise of powersPage 1 of 6
C/SCA/241/2018 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 detenu as a `Bootlegger' as defined under
section 2(b) of the Act.
2.Learned advocate for the detenu submits
registration of one FIR itself cannot lead to
disturbance of even tempo of public life and,
therefore, the public order. He further
submits that, except solitary FIR 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 detenus
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 Honble Apex Court in the case of Piyush
Kantilal Mehta Vs. Commissioner of Police,
reported in AIR 1989 S.C. 491, Anil Dey Vs.
State of West Bengal reported in AIR 1974 SC
832, Smt.Angoori Devi v. Union of India
reported in AIR 1989 SC 371 and Darpan Kumar
Sharma alias Dharban Kumar Sharma Vs. State
of Tamil Nadu reported in AIR 2003 SC 971 and
Page 2 of 6
C/SCA/241/2018 JUDGMENT
the recent judgment dated 28/3/2011 passed by
the Division Bench of this Court (Coram :
S.K. Mukhopadhyaya, 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.
3.Learned AGP submitted that registration of
FIR 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 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.
4.Having heard the rival submissions of the parties and perused the record of the case, I am of the view that FIR 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 thePage 3 of 6
C/SCA/241/2018 JUDGMENT
public order. On careful perusal of the
material available on record and the ratio
laid down by the Apex Court in above cited
cases and the recent judgment dated 28.3.2011
passed by the Division Bench of this Court in
Letters Patent Appeal No. 2732/2010, 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.
5.It is generally seen that though some of the
accused are repeatedly detained on different
occasions for different offences, only
becauseofnondisclosureofproper
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
detenu. However, when competent authorities
are not abiding all other cited cases while
passing the order of detention based upon
offences, it is surprising to note that at no
Page 4 of 6
C/SCA/241/2018 JUDGMENT
point of time they 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 detenu
continuous to commit the similar offence
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 care of
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.
6.In view of above facts and circumstances, it
would be necessary to observe that the
competent authority is not precluded to
disclose all material facts while detaining
the petitioner if so required for any offence
that he might commit hereinafter. In other
Page 5 of 6
C/SCA/241/2018 JUDGMENT
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.In the result, the petition is allowed. The order of detention dated 22.12.2017 passed by the respondent authority is quashed and set aside. The detenu is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.(S.G. SHAH, J)
VATSAL S. KOTECHA
Page 6 of 6
3 issues framed by the court
Whether registration of an FIR under the Bombay Prohibition Act alone is sufficient to establish that the detenu's activities are prejudicial to public order under the Gujarat Prevention of Anti-Socia
Whether a previous order of detention that was quashed can be relied upon as a ground for a subsequent order of detention without additional facts.
Whether the detention order passed based on an FIR registered under the Bombay Prohibition Act can be sustained.
Colour shows how this judgement treated each authority
Piyush Kantilal Mehta Vs. Commissioner of PoliceReferred¶2
AIR 1989 S.C. 491 · Who else cites this
Anil Dey Vs. State of West BengalReferred¶2
AIR 1974 SC 832 · Who else cites this
Smt.Angoori Devi v. Union of IndiaReferred¶2
AIR 1989 SC 371 · Who else cites this
Darpan Kumar Sharma alias Dharban Kumar Sharma Vs. State of Tamil NaduReferred¶2
AIR 2003 SC 971 · Who else cites this
Aartiben vs. Commissioner of PoliceReferred¶2
Letters Patent Appeal No. 2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police)
4 provisions across 3 enactments
PARESHBHAI SHAMBHUBHAI PATEL
DISTRICT MAGISTRATE
S.G. SHAH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court