Gujarat High CourtFirozkhan Najirkhan Pathan Thro' ... vs Commissioner Of Police & on 22 January, 2013Author:A.J.DesaiBench:A.J.DesaiFIROZKHAN NAJIRKHAN PATHAN THRO' PATHAN SAHEDABANU FIROZK....Petitioner(s)V/SCOMMISSIONER OF POLICE
	 
	 
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	C/SCA/16054/2012
	                                                                    
	                           JUDGMENT

 

 


 
	  
	  
		 
			 

IN
			THE HIGH COURT OF GUJARAT AT AHMEDABAD
		
	

 


 


 


SPECIAL CIVIL
APPLICATION  NO. 16054 of 2012
 


 


 

 

 

FOR
APPROVAL AND SIGNATURE: 

 

 

 

 

 

HONOURABLE
MR.JUSTICE A.J.DESAI
 

 

 

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1    
			
			
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

2    
			
			
		
		 
			 

To
			be referred to the Reporter or not ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

3    
			
			
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

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 ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

5    
			
			
		
		 
			 

Whether
			it is to be circulated to the civil judge ?
			 

 

			
		
		 
			 

 

			
		
	

 

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FIROZKHAN NAJIRKHAN PATHAN
THRO' PATHAN SAHEDABANU FIROZK....Petitioner(s)
 


Versus
 


COMMISSIONER OF POLICE  &
 2....Respondent(s)
 

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Appearance:
 

MS
BANNA S DUTTA, ADVOCATE for the Petitioner(s) No. 1
 

MRS.
HANSA PUNANI, AGP for the Respondent(s) No. 3
 

RULE
SERVED BY DS for the Respondent(s) No. 1 , 2.1
 

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CORAM:
				
				
			
			 
				 

HONOURABLE
				MR.JUSTICE A.J.DESAI
			
		
	

 


 

 


Date : 22/01/2013
 


 

 


ORAL JUDGMENT[1]This petition is directed against the order of detention dated
17.11.2012 passed by respondent
No.1, Police Commissioner,
Ahmedabad City in exercise of powers conferred underSection 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
underSection 2(b)of the Act. Along with the order of detention, the
petitioner is also served with the grounds of detention. In the
grounds of detention, there is a reference to one criminal case
pending against the petitioner. The case is registered under the
provisions of theBombay Prohibition Act.[2]		Ms.Banna
S.Dutta, 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 FIR registered under theBombay 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 ofSection 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 ofPiyush Kantilal Mehta
vs. Commissionerof 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 No2732 of
2010  in Special Civil Application No.9492 of 2010 (Aartiben vs.
Commissioner of Police) which
would squarely help the detenu.[3]		Mrs.Hansa Punani,
learned Assistant Government Pleader 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 underArticle 226of 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 the public order. On careful
perusal of the material available on record and the ratiolaid down
bythe Apex Court in the case ofPiyush 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 No2732 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.[5]		In the result, this
Special Civil Application is allowed. The order of detention dated
17.11.2012 passed by respondent
No.1, Police Commissioner, Ahmedabad City
is hereby  quashed and set aside. The detenu, is ordered to be set at
liberty forthwith if the detenu is not  required in connection with
any other case. Rule is made absolute to the aforesaid extent. Direct
service is permitted.(A.J.DESAI, J.) 

 


Ashish
Tripathi
 


	 


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