SCA/23284/2005 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23284 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 ? 4 Whether this case involves a substantial -No. 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. ============================================================== ALIBHAI RAFIKBHAI GOPLANI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ============================================================== Appearance : MS SUBHADRA G PATEL 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 : 25/01/2006 ORAL JUDGMENT 1.Alibhai Rafikbhai Goplani, petitioner-detenu has filed this habeas corpus petition under Article 226 of the SCA/23284/2005 2/10 JUDGMENT Constitution of India challenging the order of detention dated 16/10/2005 passed by the Police Commissioner, Rajkot under the provisions of PASA Act. Petition was filed on 30/11/2005. On 2/12/2005, this Court (Coram:K.M.Mehta, J.) has issued rule which was returnable on 19/12/2005. On behalf of respondent, Mr.L.R.Pujari, learned APP appears, therefore, with consent of parties, matter has been placed for final hearing to this Court. 2.Ms.S.G.Patel, learned advocate for the petitioner has invited my attention to the detention order dated 16/10/2005 passed by the detaining authority under the provisions of PASA Act. She has also invited my attention to the committal order dated 16/10/2005 passed by the detaining authority by which the petitioner-detenu was sent to Surat jail. She has also invited my attention to the grounds furnished by the detaining authority to the petitioner-detenu on the same day i.e. on 16/10/2005 for detaining the petitioner-detenu in this behalf. In the grounds, it has been alleged that the petitioner-detenu has committed seven offences which are as under: SCA/23284/2005 3/10 JUDGMENT 1) Offence committed under jurisdiction of Pradhumannagar Police Station, Rajkot in connection with Criminal Case No.280 of 2005 dated 29/5/2005 under the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one Hero Honda Splender Motor Cycle valued at Rs.15,000/-. 2) Offence committed under jurisdiction of Pradhumannagar Police Station, Rajkot in connection with Criminal Case No.316 of 2005 dated 16/6/2005 under the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one TVS Scooty Motor Cycle valued at Rs.7,000/-. 3) Offence committed under jurisdiction of Pradhumannagar Police Station, Rajkot in connection with Criminal Case No.412 of 2005 dated 9/8/2005 under the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one Hero Honda Splender Motor Cycle valued at Rs.22,000/-. 4) Offence committed under jurisdiction of Pradhumannagar Police Station, Rajkot in connection with Criminal Case No.418 of 2005 dated 11/8/2005 under SCA/23284/2005 4/10 JUDGMENT the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one Hero Honda Splender Motor Cycle valued at Rs.25,000/-. 5) Offence committed under jurisdiction of Gandhigram Police Station, Rajkot in connection with Criminal Case No.266 of 2005 dated 6/9/2005 under the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one TVS Scooty Motor Cycle valued at Rs.15,000/-. 6) Offence committed under jurisdiction of Pradhumannagar Police Station, Rajkot in connection with Criminal Case No.480 of 2005 dated 11/9/2005 under the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one Bajaj Super Scooter valued at Rs.4,000/-. 7) Offence committed under jurisdiction of Pradhumannagar Police Station, Rajkot in connection with Criminal Case No.481 of 2005 dated 16/9/2005 under the provisions of Section 379 and 114 of IPC. It was alleged that petitioner has committed theft of one Luna Motor Cycle valued at Rs.1,500/-. SCA/23284/2005 5/10 JUDGMENT 3.It may be noted that in all these are all cases of ordinary criminal offences, the authority has recovered the materials which are all cases of theft. It was further alleged that petitioner is carrying anti social activities and therefore he is falling within the meaning of 'dangerous person' under the provisions of PASA Act. His illegal activities affect the public order and therefore, the authority has passed detention order and detained the petitioner detenu under the provisions of the PASA Act. 4.The learned advocate for the petitioner stated that though all these activities are there, there may not be any violation of public order but there may be only violation of law and order situation. In support of the same, the learned advocate has relied upon the judgment of the Hon'ble Supreme Court in the case of Piyush Kantilal Mehta v. Commissioner of Police reported in AIR 1989 SC 491, 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 and judgment of the Division Bench of this Court (Coram:C.K.Thakkar, SCA/23284/2005 6/10 JUDGMENT Acting C.J. and K.M.Mehta, J.) in the case of Ashokbhai Jivrajbhai v. Police Commissioner, reported in 2000 (1) GLR 816. The learned counsel has further relied upon the judgment in the case of Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta, Commissioner of Police and others reported in 1995 (2) GLR 1268 (SC). 5.On the other hand, on behalf of respondent, Mr.L.R.Pujari, learned APP appears. He has tried to support the order of detention on the basis of grounds stated in the order of detention as well as affidavit filed by the authority. 6.I have considered relevant materials in this behalf. In this case, there is no link between the offence committed by the petitioner-detenu towards the breach of the PASA Act. The authority has failed to exercise the jurisdictional powers. There may be only breach of law and order but not public order. In that connection, the learned advocate for the petitioner- detenu has relied upon the judgment of the Hon'ble Supreme Court in the case of Piyush Kantilal Mehta (supra), judgment and order dated 22/8/2000 of the Division Bench of this Court (Coram:M.R.Calla and SCA/23284/2005 7/10 JUDGMENT R.R.Tripathi, J.J.) in L.P.A. No.223 of 2000 in S.C.A. No.554 of 2000, judgment of the Division Bench of this Court in the case of Ashokbhai Jivrajbhai (supra) and judgment in the case of Mustakmiya Jabbarmiya Shaikh (supra). 7.Having heard the learned counsel for both the parties, in my considered view, the detaining authority has 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), Division Bench Judgment of this Court (Coram:M.R.Calla and R.R.Tripathi, J.J.) in the case of Ashokbhai Balabhai Makwana, another division bench judgment of this Court in the case of Ashokbhai Jivrajbhai (supra) and judgment in the case of Mustakmiya Jabbarmiya Shaikh (supra). And therefore, the order of detention is required to be quashed and set aside. 8.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 SCA/23284/2005 8/10 JUDGMENT 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. There has to be nexus and link for such activities which disturb the public order. The activities of the 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 of the Supreme Court in Piyush Kantilal Mehta (supra), 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 the Division Bench of this Court in the case of Ashokbhai Jivrajbhai (supra), judgment in the case of Mustakmiya Jabbarmiya Shaikh (supra) and judgment of this Court (Coram:K.M.Mehta, J) in Special Civil Application No.20420 of 2005 decided on 15/11/2005, in my view, it cannot be said that the activities of the SCA/23284/2005 9/10 JUDGMENT detenu are prejudicial to the public order. Therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside. 9.I have considered the facts and circumstances of the case in view of the submissions made by the learned counsel for the petitioner and all the judgments 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 affect the public order and therefore, subjective satisfaction arrived at by the authority is not legal and valid. Therefore, the order of detention passed by the authority is required to be quashed and set aside. 10.In the result, petition is allowed. I hereby quash and set aside the order of detention. Alibhai Rafikbhai Goplani, 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.) SCA/23284/2005 10/10 JUDGMENT (ila)