Gujarat High Court
Jivan @ Nepali @ Kancha S/O ... vs State Of Gujarat on 24 February, 2021
Bench: Ashutosh J. Shastri
C/LPA/54/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 54 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 13767 of 2020
==========================================================
JIVAN @ NEPALI @ KANCHA S/O SANKARBHAI KHATRI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR ZUBIN BHARDA, for MR KISHAN H DAIYA(6929) for the Appellant
MR.KISHAN PRAJAPATI(7074) for the Appellant(s) No. 1
MS VRUNDA SHAH, AGP for the Respondent(s) No. 1,2,3
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 24/02/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. We have heard Mr. Zubin Bharda, learned counsel
appearing for Mr. Kishan Daiya appearing for the appellant and
Ms. Vruda Shah, learned Assistant Government Pleader for the
State- respondents.
2. The affidavit-in-reply filed on behalf of the State is on
record.
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 30.12.2020
passed by the learned Single Judge in Special Civil Application
No.13767 of 2020, whereby the writ petition challenging the
order of preventive detention was dismissed.
4. Learned counsel for the appellant submitted that there
C/LPA/54/2021 ORDER
are only two cases registered against the appellant. First being
C.R. No.A-11210047200650 of 2020 registered with Udhana
Police Station dated 13.4.2020 for the offences under Sections
143, 144, 148, 149, 188, 323, 325 and 504 of the Indian Penal
Code and Section 135 of the Gujarat Police Act and the second
being Part-A C.R. No.11210047200986 of 2020 registered with
Udhana Police Station dated 10.6.2020 for the offences under
Sections 143, 147. 149, 325, 323, 504, 506(2), 188 and 114 of
the Indian Penal Code and Section 135 of the Gujarat Police
Act. 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 neither any
disturbance of public order nor the appellant can be said to be
a dangerous person. It is also submitted by the learned
counsel that the appellant had been falsely implicated in the
said two cases and he is already on bail in both the cases. It is
also submitted that the appellant is in custody since
14.08.2020. 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. Vruda Shah, 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. Shah that
apart from the two First Information Reports, there were two
other statements recorded in camera and as such the order of
the learned Single Judge does not suffer from any infirmity in
dismissing the petition. The learned Single Judge after dealing
C/LPA/54/2021 ORDER
with the entire material on record declined to interfere with the
subjective satisfaction of the detaining authority in holding that
the appellant was a dangerous person. 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, we find that the
First Information Report related to an offence of causing hurt
while committing robbery and dacoity in which the FIR was
against an unknown person. In the other case, the offence
came to be registered for attempt to cause death or grievous
hurt while committing robbery or dacoity. By no stretch of
imagination can we hold that such two incidents could describe
a person as a dangerous person.
7. The other two statements recorded in camera could be of
help to the detaining authority in passing the detention order
where at least prima facie the detenue could be said to be a
dangerous person on account of his known criminal activities.
The said view has been discussed and ratio laid down in the
judgment of this Court in the case of Vijay alias Ballu
(supra) after considering in detail the law on the point.
C/LPA/54/2021 ORDER
8. 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 is set aside. The detention order is
quashed. The appellant be set at liberty forthwith if not
required in any other case.
(VIKRAM NATH, CJ)
(ASHUTOSH J. SHASTRI, J)
OMKAR
