Ashish @ Kaliyo Ram Sidhdharth Kori vs State Of Gujarat

Paresh Upadhyay, J

Challenge in this petition is made to the order passed by the Commissioner of Police, Ahmedabad City dated 16.10.2020, whereby the petitioner is

detained under the Gujarat Prevention of Anti Social Activities Act, 1985.

Learned advocate for the petitioner has submitted that, mere filing of two FIRs against the petitioner, that too in the year 2019, itself is no ground,

for the detaining authority, to arrive at the conclusion that the activities of the petitioner are prejudicial to the maintenance of the public order. It is

further submitted that, no legally sustainable satisfaction is recorded by the detaining authority before passing the impugned order and therefore the

impugned order be quashed and set aside. Attention of this Court is also invited to the fact that the petitioner had earlier approached this Court by

filing Special Civil Application No.22685 of 2019. Serious grievance is made that the impugned order, over and above being illegal and arbitrary is also

an attempt to overreach the proceedings before this Court. For this purpose, the orders passed in the said matter, which are on record of this petition,

are referred by the learned advocate for the petitioner.

Learned Assistant Government Pleader for the respondent State Authorities has supported the detention order passed by the detaining authority and

has submitted that the impugned order is based on sufficient material and the detaining authority has rightly arrived at the conclusion that the activities

of the petitioner are prejudicial to the maintenance of the public order. It is submitted that this petition be dismissed.

Having heard learned advocates for the respective parties and having considered the material on record, this Court finds that the detaining authority

has exercised the powers, treating the petitioner as a ‘bootlegger’ within the meaning of Section 2(b) of the Act. Two FIRs, which is the basis

to treat the petitioner as a bootlegger and further details in that regard are on record. Said two FIRs, which are of the year 2019 and other material

which is on record is considered by this Court. On conjoint consideration thereof it transpires that, the detaining authority fell in error in treating the

activities of the petitioner as prejudicial to the maintenance of the public order. The distinction between ‘the law and order’ as ‘the public

order’ needs to be kept in mind, in view of the decision of the Supreme Court of India in the case of Pushker Mukherjee v/s. State of West

Bengal reported in AIR 1970 SC 852. The impugned order, on facts, fails on this test. The impugned order therefore needs to be quashed and set

aside. It is noted that, in the grounds of the detention, the detaining authority has recorded to the effect that, according to him, the activities of the

petitioner create a sense of alarm and feeling of insecurity in the minds of public at large, however on weighing this vis-a-vis the material on record,

this Court finds that, the citation of such words is more in the nature of rituals rather than with any significance to the alleged activities of the

petitioner. In totality, this Court finds that, the impugned order is unsustainable and needs to be quashed and set aside.

There is additional reason to set aside the impugned order.

5.1 Reference needs to be made to the fact that the petitioner had earlier approached this Court, at pre-detention stage, by filing Special Civil

Application No.22685 of 2019. On the said petition, this Court had, on 22.01.2020 passed the following order.

“1. By way of the present petition under Article 226 of the Constitution of India, the petitioner apprehends his detention under the provisions of

Gujarat Prevention of Anti Social Activities Act, 1985 (for short, the PASA Act) on account of registration of F.I.R/s. As described in para 2.1 and

2.2 of the petition.

According to the petitioner, except registration of the aforementioned FIR/s, no other material is available with the competent authority to detain the

petitioner under the provisions of the PASA Act.

Upon perusal of the F.I.R/s., it appears that the petitioner apprehends his detention on account of registration of two offences under Prohibition Act

and therefore, apprehension of the petitioner is well-founded and liberty of the petitioner is required to be protected.

Hence, Rule. Learned AGP waives service of rule on behalf of the respondent â€" State.

It is made clear that the petitioner is protected only in respect of the FIR/s as mentioned in the aforementioned para. The competent authority is at

liberty to take suitable action against the petitioner in respect of offences, other than mentioned in the said para, if any, registered and incriminating

materials found to detain the petitioner. The learned A.G.P. is directed to place on record the detention order, if any, passed against the petitioner for

Court’s perusal. Direct service is permitted.â€​

5.2 In view of the above order, no order under PASA could have been passed by the Authorities, on the basis of the material which was placed on

record of Special Civil Application No.22685 of 2019. If at all it was to be passed, it was required to first place it on record of the said petition. The

same was not done for months. After many months, as late as on 28.09.2020, it was asserted on behalf of the Authorities that there was no detention

order against the petitioner, at the relevant time. This Court had already, vide order dated 22.01.2020 held that solely on the basis of those two FIRs,

no detention order could be passed, and if passed, was prima facie unsustainable. There was no reason for the petitioner to continue with that

litigation. It is under this circumstances, the said petition was disposed of on 28.09.2020.

5.3 Soon thereafter, on 16.10.2020, the Authorities have passed the order, on very same two FIRs, which were referred in the order dated 22.01.2020.

In substance, the disposal of the said petition is treated by the Authorities, as if the order dated 22.01.2020 was reversed / vacated on merits.

5.4 The above chronology shows that, the proposal made by the concerned officer to pass order under PASA and even the exercise of powers by the

Commissioner of Police, Ahmedabad, while passing the impugned order dated 16.10.2020, apart from being illegal, under no circumstances can be said

to be ‘an order passed / action taken in good faith’.

5.5 The impugned order needs to be quashed and set aside on this additional ground as well.

6.1 So far an attempt to overreach the proceedings before this Court is concerned, that aspect may be gone into separately, appropriately. The liberty

of the petitioner can not be deferred for that purpose.

6.2 Since the petitioner is deprived of his liberty, illegally, he needs to be compensated appropriately. It would not be prudent to quantify that amount

by this Court, in exercise of powers under Article 226 of the Constitution of India. All the parties should have opportunity to put their case in that

regard. It is therefore left open to the petitioner to take out appropriate proceedings, before appropriate forum, for compensation and / or costs, against

the concerned Officers for their acts / actions, which are held to be ‘not in good faith’ by this order. While allowing this petition, that liberty is

reserved to the petitioner.

For the reasons recorded above, the following order is passed.

7.1 This petition is allowed.

7.2 The impugned order passed by the Commissioner of Police, Ahmedabad City dated 16.10.2020, is quashed and set aside.

7.3 The petitioner / detenue is ordered to be set at liberty forthwith, if not required in any other case.

7.4 So far an attempt to overreach the proceedings before this Court is concerned, that aspect is kept open to be gone into separately, appropriately,

as noted in para:6.1 above.

7.5 So far the compensation / costs to be awarded to the petitioner is concerned, liberty is reserved to the petitioner to take out appropriate

proceedings against the responsible persons / officers, before appropriate forum, as referred in para:6.2 above.

7.6 Rule is made absolute in above terms.

7.7 Registry to communicate this order by way of FAX / E-mail to the concerned Authority.

Direct service is permitted.