Pinka alias Pinkey vs State of Gujarat and Others

Anant S. Dave, J.—Heard learned Counsel for the parties.

This petition is directed against the order of detention dated 25.8.2010 passed by Respondent No. 2 in exercise of powers conferred u/s 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "the Act") by detaining the lady-detenu as a "bootlegger" as defined u/s 2(b) of the Act.

Learned Counsel for the detenu submits that order of detention impugned in this petition deserves to be quashed and set aside on the ground that two offences alleged against the detenu are not of such magnitude and intensity as to have the effect of disturbing the public order so as to pass an order u/s 3(2) of the PASA Act. He has further submitted that the detaining authority has not applied his mind to the vital facts and there was non-application of mind before recording the order of detention. In support of the above contention, the learned Counsel has relied upon the following case-laws:

Judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram: M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent Appeal No. 223 of 2000 in Special Civil Application No. 554 of 2000 Ashok Balabhai Makwana v. State of Gujarat;

i. Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and Another,

ii. Om Prakash v. Commissioner of Police and Ors. JT 1989 (4) SC 177

iii. Kanuji S. Zala v. state of Gujrat and Ors. 1999 (2) GLH 415.

Learned AGP for the Respondent-State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenu, indicating that the detenu is in the habit of indulging into activities as defined u/s 2(b) of the Act and, considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court.

Having heard learned Counsel for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the two FI Rs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenu cannot be said to be germane for the purpose of bringing the detenu within the meaning of Section 2(b) of the Act unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing the public order at the instance of such person. In view of the ratio laid down by the Hon''ble Supreme Court in the decisions cited by the learned Counsel for the Petitioner, the Court is of the opinion that the activities of the detenu cannot be said to be dangerous to the maintenance of the public order and at the most fall under the maintenance of "law and order".

In the result, this Special Civil Application is allowed. The impugned order dated 25.8.2010 of detention passed by Respondent No. 2 is hereby quashed and set aside. The detenu is ordered to be set at liberty forth with if in ot required in any other case. Rule is made absolute accordingly. Direct service is permitted.