Quashed

Robin Imanual Makwan v. State of Gujarat

Gujarat HC3 Apr 2018SCA/488/2018

Case brief

AI extract

What is this about?

The High Court of Gujarat quashed a detention order passed under the Gujarat Prevention of Anti Social Activities Act, 1985. The court held that FIRs alone were insufficient to establish prejudice to public order without a nexus demonstrating disturbance of public safety.

What did the court decide?

The detention order dated 27.12.2017 is quashed and set aside; the detenu is ordered to be set at liberty forthwith.

Robin Imanual Makwan Vs State of Gujarat — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/488/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 488 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G. SHAH

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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 or any order made thereunder ?

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ROBIN IMANUAL MAKWAN

Versus

STATE OF GUJARAT

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Appearance:

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MR JS RATHOD(1639) for the PETITIONER(s) No. 1 MR NIRAJ ASHAR, AGP (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

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Date : 03/04/2018

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ORAL JUDGMENT

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1.This petition is directed against the order of detention dated 27.12.2017 passed by respondent authority in exercise of powers

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Page 1 of 6

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C/SCA/488/2018 JUDGMENT

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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.

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2.Learned advocate for the detenu submits
registration of two FIRs itself cannot lead
to disturbance of even tempo of public life
and, therefore, the public order. He further
submits that, except 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

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C/SCA/488/2018 JUDGMENT

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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.

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3.Learned AGP submitted that registration of
FIR/s 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.

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4.Having heard the rival submissions of the
parties and perused the record of the case, I
am of the view that FIR/s 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

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C/SCA/488/2018 JUDGMENT

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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.

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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

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C/SCA/488/2018 JUDGMENT

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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.

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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

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C/SCA/488/2018 JUDGMENT

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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.

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7.In the result, the petition is allowed. The order of detention dated 27.12.2017 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.

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(S.G. SHAH, J.)

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Kotecha

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Robin Imanual Makwan v. State of Gujarat

Case brief

What is this about?

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Robin Imanual Makwan v. State of Gujarat

Case brief

What is this about?

What did the court decide?

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