JUDGEMENT
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(1.)THIS petition is directed against the order of detention dated 10.01.2013 passed by
respondent No.1, Commissioner of Police,
Ahmedabad City in exercise of powers conferred
under Section 3(1) of the Gujarat Prevention of
Anti Social Activities Act, 1985 (in short" the
Act) by detaining the detenu as a "bootlegger" as
defined under Section 2(b) of the Act. Along with
the order of detention, the petitioner is also
served with the grounds of detention. In the
grounds of detention, there is a reference to
four criminal cases pending against the
petitioner. The cases are registered under the
provisions of the Bombay Prohibition Act.
(2.)MR .Kamlesh Kachhavah, learned advocate for the detenu submits that registration of FIR
itself cannot lead to disturbance of even tempo
of public life and therefore the public order.
The order of detention is assailed by the detenu
on various grounds mentioned in the memo of the
petition. However, learned counsel for the detenu
submits that, except FIR registered under the
Bombay Prohibition Act, there was no other
material before the detaining authority whereby
it could be inferred reasonably that the detenu
is a 'bootlegger' within the meaning of Section
2(b) of the Act and required to be detained as the detenu's activities are prejudicial to the
maintenance of public health and public order.
In support of the above submission, learned
counsel for the detenu has placed reliance on
judgment of the Apex Court in the case of Piyush
Kantilal Mehta vs. Commissioner of police, AIR
1989 Supreme Court 491 and the recent judgment dated 28.3.2011 passed by the Division Bench of
this Court [Coram: S.J. Mukhopadhaya C.J. & J.B.
Pardiwala, J].] in Letters Patent Appeal No2732
of 2010 in Special Civil Application No.9492 of
2010 (Aartiben vs. Commissioner of Police) which would squarely help the detenu.
Ms.Rekha Patel, learned Assistant Government Pleader submitted that registration of
FIR would go to show that the detenu had, in
fact, indulged into such activities, which can be
said to be disturbing the public health and
public order and in view of sufficient material
before the detaining authority to pass the order
of detention, no interference is called for by
this Court in exercise of its power under Article
226 of the Constitution of India.
(3.)HAVING heard the rival submissions of the parties and perused the record of the case, I
am of the view that FIRs registered under the
Bombay Prohibition Act alone cannot be said to be
sufficient enough to arrive at subjective
satisfaction to the effect that the activities,
as alleged, are prejudicial to the public order
or lead to disturbance of public order. There has
to be nexus and link for such activities with
disturbance of the public order. On careful
perusal of the material available on record and
the ratio laid down by the Apex Court in the case
of Piyush Kantilal Mehta (supra) and the recent
judgment dated 28.3.2011 passed by the Division
Bench of this Court [Coram: S.J. Mukhopadhaya
C.J. & J.B. Pardiwala, J].] in Letters Patent
Appeal No2732 of 2010 in Special Civil
Application No.9492 of 2010 (Aartiben vs.
Commissioner of Police), I am of the view that
the activities of the detenu cannot be said to be
in any manner prejudicial to the public order and
therefore, the order of detention passed by the
detaining authority cannot be sustained and is
required to be quashed and set aside.
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