SCA/24391/2005 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24391 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ========================================= = 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 constitution of India, 1950 or any order made thereunder ? -No. 5 Whether it is to be circulated to the civil judge ? -No. ========================================= = MOHAMMAD JUNED ALIAS KUKADI S/O ABDUL LATIF SHEIKH - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= = Appearance : MS KRISHNA U MISHRA for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 3, ===================================================================== CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 17/01/2006 ORAL JUDGMENT 1.Mohammad Juned Alias Kudadi S/o Abdul Latif Sheikh, petitioner-detenu has filed this habeas corpus petition under Article 226 of the Constitution of India for SCA/24391/2005 2/8 JUDGMENT quashing and setting aside the order of detention dated 4/10/2005 passed by the Police Commissioner, Ahmedabad, detaining authority, under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985. Petition was filed on 6/12/2005. When the matter was filed before this Court, on 23/12/2005, this Court has issued Rule which was returnable on 16/1/2005. On behalf of respondent, Mr.L.R.Pujari, learned APP appears. Therefore, with consent of the parties, matter has been taken up for final disposal. 2.Ms.Krishna U. Mishra, learned advocate appears for the petitioner. The learned advocate for the petitioner has invited my attention to the order of detention dated 4/10/2005 passed by the detaining authority under the provisions of PASA Act. The learned counsel has also invited my attention to the order of committal dated 4/10/2005 by which the petitioner-detenu has been sent to Bharuch jail. She has also invited my attention to the grounds of detention supplied by the detaining authority to the petitioner-detenu dated 4/10/2005 in this behalf. She has stated that said grounds revels seven offences which are as under: SCA/24391/2005 3/8 JUDGMENT 1. Offence registered at Karanj Police Station in connection with CR No.43 of 2005 dated 21/2/2005 under Section 379 of IPC. It is alleged that petitioner has caused damage to one Hero Honda Splender valued at Rs.20,000/-. 2. Offence registered at Shahpur Police Station in connection with CR No.96 of 2005 dated 11/7/2005 under Section 379 and 114 of IPC. It is alleged that petitioner has caused damage to one Hero Honda Passion valued at Rs.20,000/-. 3. Offence registered at Kalupur Police Station in connection with CR No.136 of 2005 dated 23/9/2005 under Section 379 of IPC. It is alleged that petitioner has caused damage to one Atlas Super Power Cycle valued at Rs.700/-. 4. Offence registered at Kalupur Police Station in connection with CR No.137 of 2005 dated 23/9/2005 under Section 379 of IPC. It is alleged that petitioner has caused damage to one Hero Walk Cycle valued at Rs.1,500/-. SCA/24391/2005 4/8 JUDGMENT 5. Offence registered at Kalupur Police Station in connection with CR No.138 of 2005 dated 23/9/2005 under Section 379 of IPC. It is alleged that petitioner has caused damage to one Atlas Gold Cycle valued at Rs.1,600/-. 6. Offence registered at Kalupur Police Station in connection with CR No.139 of 2005 dated 23/9/2005 under Section 379 of IPC. It is alleged that petitioner has caused damage to one Hero Cycle valued at Rs.1,000/-. 7. Offence registered at Kalupur Police Station in connection with CR No.140 of 2005 dated 23/9/2005 under Section 379 of IPC. It is alleged that petitioner has caused damage to one Hero Ranger Back Cycle valued at Rs.1,000/-. 3.It was also alleged that petitioner is keeping dangerous weapons with him and therefore, he is a 'dangerous person' under the provisions of PASA Act as carrying on anti social activities in this behalf. 4.The learned counsel for the petitioner has submitted that the authority could not passed the said order as SCA/24391/2005 5/8 JUDGMENT there may be only disturbance of law and order and not public order in this behalf. For which he has relied upon the judgment in the case of Piyush Kantilal Mehta v. Commissioner of Police, reported in AIR 1989 SC 491, Division Bench judgment of this Court (Coram:M.R.Calla and R.R.Tripathi, J.J) in Letters Patent Appeal No.223 of 2000 in Special Civil Application No.554 of 2000 in the case of Ashok Balabhai Makwana decided on 22/8/2000 and another judgment of this Court (Coram: C.K.Thakkar, Acting C.J. and K.M.Mehta, J.), reported in 2000 (1) GLR 816 in the case of Ashokbhai Jivrajbhai v. Police Commissioner. The learned counsel for the petitioner has also relied upon judgment of this Court (Coram: K.M.Mehta, J) in Special Civil Application No.20420 of 2005 decided on 15/11/2005. 5.The On behalf of the respondents, Mr.L.R.Pujari, learned APP appears. He has relied upon order of detention as well as grounds of detention in this behalf. He has not filed any affidavit in this behalf. 6.Having heard the learned counsel for both the parties, in my considered view, the detaining authority has SCA/24391/2005 6/8 JUDGMENT passed the order of detention without there being any credible and cogent material in this behalf. Contentions of the petitioner are squarely covered by the decisions of the Hon'ble Apex Court in the case of Piyush Kantilal Mehta (supra) and Division bench Judgment of this Court (Coram: M.R.Calla and R.R.Tripathi, J.J.) in L.P.A. No.223 of 2000 in S.C.A. no.554 of 2000 in case of Ashok Balabhai Makwana and another judgment of this Court (Coram: C.K.Thakkar, Acting C.J. and K.M.Mehta, J.) in the case of Ashokbhai Jivrajbhai (supra). And therefore, the order of detention is required to be quashed and set aside. 7.Having heard the rival submissions of the parties and perused the records of the case, I am of the view that only registration of criminal cases alone cannot be said to be sufficient enough to arrive at the subjective satisfaction to the effect that the activities of the detenu are prejudicial to the public order. The power to detain a person under the PASA Act is not based on simple facts about registration of crimes or the activities of theft of the detenu. There has to be nexus and link for such activities with disturbance of the public order. The activities of the SCA/24391/2005 7/8 JUDGMENT detenu must in the backdrop of the facts, reflect that such activities disturbed the even tempo or normal life of the community in the locality or disturbed general peace and tranquility or create a sense of alarm and insecurity in the locality. On careful perusal of the grounds of detention order and relying upon the judgment and order dated 22/8/2000 of the Division Bench of this Court (Coram:M.R.Calla and R.R.Tripathi, J.J.) in L.P.A. No.223 of 2000 in S.C.A. No.554 of 2000, judgment of Supreme Court in Piyush Kantilal Mehta (supra) and Special Civil Application No.20420 of 2005 decided by this Court (Coram:K.M.Mehta, J.) on 15/11/2005, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside. 8.I have considered the facts and circumstances of the case in view of the submissions made by the learned counsel for the petitioner, judgment of the Hon'ble Apex Court in the case of Piyush Kantilal Mehta (supra) and judgment in Letters Patent Appeal (supra) and other judgment cited by the petitioner. Considering all these, I am of the view that the activities of the petitioner may affect law and order situation and not SCA/24391/2005 8/8 JUDGMENT affect the public order and therefore, subjective satisfaction arrived at by the authority is not legal and valid. In my view, it cannot be said that the activities of the detenu are prejudicial to the public order. Therefore, the order of detention passed by the authority is required to be quashed and set aside. 9.In the result, I am of the view that the order of detention cannot be sustained by law. I hereby quash and set aside the order of detention. Petition is allowed. Mohammad Juned Alias Kukadi S/o Abdul Latif Sheikh, detenu is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made absolute accordingly with no order as to cost. Direct service is permitted. (K.M.MEHTA, J.) (ila)