[ENTITY] THROUGH BROTHER Petitioner(s)V/S[ENTITY] THROUGH DEPUTY SECRETARY C/SCA/2254/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2254 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] sd/- 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 [ACT], 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No [ENTITY] THROUGH BROTHER Petitioner Versus [ENTITY] THROUGH DEPUTY SECRETARY & 2 Respondents Appearance: MR MR [ENTITY], ADVOCATE for the Petitioner. MR [ENTITY], AGP for the Respondent No.3. RULE SERVED BY DS for the Respondent Nos.1 - 2 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 04/04/2013 [ENTITY]
This petition is directed against the order of detention dated 01/02/2013 passed by respondent No.2 herein - District Magistrate, Valsad in exercise of powers conferred under [SECTION] of the [ACT] (in short the [ACT] ) by detaining the detenue as a bootlegger as defined under [SECTION] of the Act. Along with the order of detention, the detenue is also served with the grounds of detention. In the grounds of detention, there is a reference to one criminal case pending against the detenue. The case is registered under the provisions of the [ACT].
[2] Mr.[ENTITY], learned advocate for the detenue 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 detenue on various grounds mentioned in the memo of the petition. However, learned counsel for the detenue submits that, except FIR registered under the [ACT], there was no other material before the detaining authority whereby it could be inferred reasonably that the detenue is a 'bootlegger' within the meaning of [SECTION] of the Act and required to be detained as the detenue's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenue has placed reliance on judgment of the Apex Court in the case of [PRECEDENT] and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: [ENTITY] C.J. & [ENTITY], J].] in [CASE NUMBER] in [PRECEDENT]) which would squarely help the detenue.
[3] Mr.[ENTITY], learned Assistant Government Pleader submitted that registration of FIR would go to show that the detenue 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 [SECTION] of the [ACT].
[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 [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 [PRECEDENT] (supra) and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: [ENTITY] C.J. & [ENTITY], J].] in [CASE NUMBER] in [PRECEDENT]), I am of the view that the activities of the detenue 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, the petition is allowed. The impugned order of detention dated 01/02/2013 passed by respondent No.2 herein, is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if he is not required to be detained in connection with any other case. Rule is made absolute accordingly.
Direct service is permitted.
[A.J. DESAI, J.] *dipti Page of 5