AIYUBKHAN KASAMKHAN PATHAN THRO AIYUBKHAN USMANKHAN PATHA Petitioner(s)V/SSTATE OF GUJARAT C/SCA/15829/2012 JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 15829 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 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 [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? AIYUBKHAN KASAMKHAN PATHAN THRO AIYUBKHAN USMANKHAN PATHA Petitioner(s) Versus STATE OF GUJARAT & 2 Respondent(s) Appearance: MR AR SHAIKH, ADVOCATE for the Petitioner(s) No. 1 Mrs. [ENTITY], AGP for the Respondent(s) No. 1 , 3 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 15/01/2013 ORAL JUDGMENT
This petition is directed against the order of detention dated 22.10.2012 passed by the respondent No. 2 the [ENTITY], in exercise of powers conferred under [SECTION] of the [ACT] (in short the Act) by detaining the detenu as a bootlegger as defined under [SECTION] 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 the [ACT].
[2] Mr. [ENTITY], 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 FIRs registered under the [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] 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 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 detenu.
[3] Mrs. [ENTITY], learned Assistant Government Pleader submitted that registration of FIRs 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 [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 FIRs 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 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 impugned order of detention dated 22.10.2012 passed by the respondent No. 2 the [ENTITY] is 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.
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