SCA/6572/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6572 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= KHALIL MUSTAKBHAI SHEIKH - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS KD PARMAR for Petitioner(s) : 1, MS SANDHYA NATANI, AGP for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 15/07/2008 ORAL JUDGMENT 1. Heard learned advocate appearing on behalf of the petitioner-detenue and learned AGP for the respondents. SCA/6572/2008 2/4 JUDGMENT 2. The petitioner-detenue has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting the impugned order of detention dated 21.1.2008 passed by the respondent No.2-Police Commissioner, Ahmedabad City, whereby in exercise of power under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short, 'PASA') the detenu has been branded as “Dangerous person” and has been detained. By a separate order, he has been detained in Porbandar Jail. 3. From the grounds of detention, it appears that two offences have been registered against the detenue: one at Sarkhej Police Station being CR No.89 of 2006 and the other being DCB Police Station CR No.28 of 2007 under Sections 342, 395, 399, 400, 402 and 120-B of IPC and Section 25(1)(b), A of the Arms Act, and Section 135(1) of the Bombay Police Act wherein it is alleged that the detenue is engaged in the illegal activities of theft of Gold, silver etc. and armed with deadly weapons like gun, sword etc. threatening people, extorting money etc. On the basis of the registration of these cases, the detaining authority after recording the subjective satisfaction, has come to the conclusion that the present detenue's aforesaid activities are prejudicial to maintenance of 'public order' and ultimately passed the impugned order of detention against him branding him as a “Dangerous Person”. SCA/6572/2008 3/4 JUDGMENT 4. Except few statements of anonymous witnesses, there is no material on record which shows that the detenue is carrying on with illegal activities as aforesaid. Further, it is stated that the detenu has been released on bail in connection with both the offences and the trial is pending. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat [(2001 (1) GLH 393)], having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this Court held that the cases wherein the detention orders are passed on the basis of the statements of such witnesses fall under the maintenance of 'Law and Order' and not 'Public Order'. 5. Applying the ratio of the above decisions, it is clear that before passing an order of detention of a detenue, the detaining authority must come to a definite finding that there is threat to the 'Public Order' and it is very clear that the present case would not fall within the category of threat to 'public order'. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds, for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside. 6. In the result, this Special Civil Application is allowed. The impugned order of detention dated SCA/6572/2008 4/4 JUDGMENT 21.1.2008 passed by the detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted. (M.D.Shah, J.) Sreeram.