Gujarat High Court
SCA/16192/2007 of HARIOM OMPRAKASH GOSWAMI THRO' SAROJBEN .O. GOSWAMI Vs STATE OF GUAJARAT THRO' ADDL. CHIEF SECRETARY on 26 December 2007
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16192 of 2007 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
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 16192 of 2007
For Approval and Signature:
HONOURABLE MR.JUSTICE MD SHAH
=========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?
2To be referred to the Reporter or not ?
3[Whether their Lordships wish to see the fair copy ]of the judgment ?of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the of law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ?constitution of India, 1950 or any order made thereunder ?
5[Whether it is to be circulated to the civil judge ]??
=========================================================
HARIOM OMPRAKASH GOSWAMI THRO' SAROJBEN O.GOSWAMI –
Petitioner.VersusSTATE OF GUJARAT THRO' ADDL.CHIEF SECRETARY & 2 – RespondentS.
=========================================================Appearance :MR Bharat Janifor Petitioner(s) : 1,Mr.Apurva Dave, A.G.P. for Respondents.
=========================================================
CORAM :HONOURABLE MR.JUSTICE MD SHAH
Date : 26/12/2007
1. Heard learned Counsel Mr.Bharat Jani for the petitioner-detenu and learned A.G.P. Mr.Apurva Dave for the respondents.
2. The petitioner-detenu has challenged the legality and validity of the order of detention dated
4-4-2007 passed by the Police Commissioner, Ahmedabad City, in exercise of powers under sub-Section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985( for short “ the PASA Act”).3.The petitioner-detenu has been branded as a “dangerous person” within the meaning of Section 2(c) of the PASA Act. The grounds of detention supplied to the petitioner indicate that for recording subjective satisfaction, the detaining authority has relied on six pending cases of theft registered against the detenu being CR no.226/2004 dt.13-3-2004, CR no.21/2006 dt.11-2-2006, CR no.177/2006 dt.5-3-2006, CR no.482/2006 dt.6-10-2006 all under Sec.379 of the Indian Penal Code. All the cases are relating to theft and sale of two wheelers. The detaining authority has also considered the certain statements of witnesses, and thereafter, the detention order came to be passed.4.The learned Advocate for the detenu has assailed the impugned order of detention on several grounds as stated in the memo of petition. However, he has confined his arguments mainly on the point that the activities of the detenu as a dangerous person has adversely affected or is likely to affect adversely the maintenance of public order.5.The learned Counsel for the detenu submitted that the detaining authority ought not to have recorded subjective satisfaction on mere registration of above criminal cases which are pending that the activities of the detenu have potential to disturb public order.
6. This petition is capable of being disposed of on the sole ground that the activities of the petitioner were not prejudicial to the maintenance of public order.In the present case, merely on the basis of commission of offences of theft and sale of two wheelers and their use for snatching articles, it cannot be said that the activities of the detenu are prejudicial to the maintenance of public order. To reach to the subjective satisfaction that the activities of theft and involvement in the criminal cases aforestated by the petitioner-detenu were prejudicial to the maintenance of public order, there should be cogent and credible material showing that the activities of the petitioner directly or indirectly were causing or were likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property etc. While undertaking this exercise, the detaining authority must draw a clear line between the cases falling within breach of law and order and breach of public order. In the opinion of this Court, the activities of the present petitioner-detenu can at the most fall within breach of law and order which can be adequately punished otherwise. In this context reference may be had to the decision rendered in the case of Harpreet Kaur vs. State of Maharashtra, reported in 1992 SC 797, wherein it has been held that involvement of the accused in fourteen offences including offences of lifting gas cylinders cannot be said to be prejudicial or dangerous to the maintenance of public tranquility and the authority was not justified in arriving at the subjective satisfaction that the activities of the petitioner were likely to affect the maintenance of public tranquility.
7. In view of the above settled legal position, the say of the learned Counsel for the detenu that the detaining authority has committed grave error in arrising at a subjective satisfaction that the detenu is a “dangerous person” and his activities are prejudicial or dangerous to maintenance of public order requires to be accepted. The order of detention, is therefore not sustainable in the eye of law.
8. In the result, the petition is allowed. The impugned order of detention dated 4-4-2007 passed by the Police Commissioner, Ahmedabad City, is hereby quashed and set aside and the detenu is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute. Direct service is permitted.
(M.D.Shah,J.)
lee.