Gujarat High Court
Asheshbhai Indravadanbhai ... vs State Of Gujarat on 6 August, 2021
Bench: Biren Vaishnav
C/LPA/645/2021 ORDER DATED: 06/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 645 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 6591 of 2021
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ASHESHBHAI INDRAVADANBHAI DUDHIYA (GANCHI)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR NIRUPAM NANAVATY, SR. COUNSEL with MR.HARDIK
BHARHMBHAT(3741) for the Appellant(s) No. 1
for the Respondent(s) No. 2,3
MS S. S. PATHAK, AGP (99) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 06/08/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. We have heard Mr. Nirupam Nanavaty, learned Senior
Advocate assisted by Mr. Hardik Brahmbhatt, learned counsel for
the appellant and Ms. Shruti S. Pathak, learned AGP for the State
respondents.
2. The affidavit-in-reply filed on behalf of the State is on
record.
C/LPA/645/2021 ORDER DATED: 06/08/2021
3. The present Letters Patent Appeal has been preferred
under Clause 15 of the Letters Patent Act assailing the
correctness of the judgment and order dated 5.7.2021 passed by
the learned Single Judge in Special Civil Application No.6591 of
2021, whereby the writ petition challenging the order of
preventive detention was dismissed.
4. Learned counsel for the appellant submitted that there are
only two cases registered against the appellant on the basis of
which the detention order is passed. First being a case under
Sections 4 and 5 of the Gambling Act based on an FIR dated
7.1.2017, the second is about an offence under Sections 4 and 5
of the Gambling Act, Section 269 of the Indian Penal Code and
Section 51(b) of the Disaster Management Act wherein the FIR
had been lodged on 14.10.2020. Apart from it, there is no other
material against the appellant. The invoking of jurisdiction under
the preventive detention law is totally unjustified as there was no
disturbance of public order. It is also submitted by the learned
counsel that the appellant had been falsely implicated in the said
two cases. It is also submitted that the appellant is in custody
C/LPA/645/2021 ORDER DATED: 06/08/2021
since 26.03.2021. It is next submitted that a recent Division
Bench judgment of this Court dated 31.08.2020 passed in the
case of Vijay Alias Ballu Bharatbhai Ramanbhai Patni vs.
State of Gujarat, being Letters Patent Appeal No.454 of
2020, squarely covers the case of the present appellant.
5. On the other hand, Ms. Pathak, learned Assistant
Government Pleader submitted that the order of detention is
fully justified and the detaining authority after due satisfaction
has passed the said order. It is also submitted by Ms. Pathak that
in all nine offences are registered against the appellant in
different police stations under the Prevention of Gambling Act
and, therefore, the appellant be considered as habitual offender
as he falls within the definition of Section 2(bb) of `common
gaming house keeper' under the PASA Act. The detaining
authority has therefore taking into consideration the overall
active involvement of the appellant coupled with the number of
offences which are registered, arrived at a subjective satisfaction
that the appellant is likely to continue with the activities of
gambling as the same can be seen from the details of the
number of offences in which he is involved. The learned Single
C/LPA/645/2021 ORDER DATED: 06/08/2021
Judge after dealing with the entire material on record declined to
interfere with the subjective satisfaction of the detaining
authority. This Court as such may not interfere with the order of
the learned Single Judge and dismiss the appeal.
6. In the judgment dated 31.08.2020 in the case of Vijay
alias Ballu (supra), the issue relating to public order and law
and order problem had been dealt with in detail. Law of
preventive detention has to be construed not as in an ordinary
criminal proceedings of detaining or arresting a person who is
said to have committed crime where the procedure is provided
and the remedy is available. However, the law of preventive
detention is to be strictly followed as per the statute and the
settled law on the point. In the present case, by no stretch of
imagination can we hold that such incidents could disturb public
order.
7. We are accordingly of the view that the order of detention
cannot be sustained. Accordingly, the appeal succeeds and is
allowed. The judgment and order of the learned Single Judge
dated 5.7.2021 passed by the learned Single Judge in Special
C/LPA/645/2021 ORDER DATED: 06/08/2021
Civil Application No.6591 of 2021 is set aside. The detention
order dated 24.12.2020 is quashed. The appellant be set at
liberty forthwith if not required in any other criminal case.
(VIKRAM NATH, CJ)
(BIREN VAISHNAV, J)
*** VATSAL
