Gujarat High Court
Sureshbhai Lakhubhai Parmar vs The State Of Gujarat on 28 July, 2021
Bench: J.B.Pardiwala
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1121 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 9675 of 2018
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
In R/LETTERS PATENT APPEAL NO. 1121 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SURESHBHAI LAKHUBHAI PARMAR
Versus
THE STATE OF GUJARAT
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Appearance:
MR PAWAN A BAROT(6455) for the Appellant(s) No. 1
MR CHINTAN DAVE, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 28/07/2021
ORAL JUDGMENT
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is at
the instance of an unsuccessful writ-applicant of a writ-
application and is directed against the judgment and order
passed by the learned Single Judge of this Court dated
1.8.2018 in the Special Civil Application No.9675 of 2018
whereby the learned Single Judge declined to entertain the
writ-application at the pre-detention stage and accordingly
rejected the same.
2. On 28.8.2018 a Coordinate Bench of this Court passed
the following order :-
"Notice to the respondents returnable on 12 th September, 2018.
Till then, there shall be interim relief in terms of paragraph
No.14(C) of Civil Application No.1 of 2018. Direct service is
permitted."
Thus, it appears that while issuing notice in the present
appeal the Coordinate Bench stayed the execution and
operation of the order of detention dated 16.6.2018 passed by
the detaining authority.
3. It appears that thereafter from time to time the aforesaid
relief came to be extended. This appeal came up for hearing
before this Bench for the first time on 16.6.2021. On 28.6.2021
this Bench passed the following order :-
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
"1. We have heard Mr. Chintan Dave, the learned AGP
appearing for the State respondents.
2. Apropos the suggestion put forward by this Court, it appears
that the Police Inspector of the Vadaj Police Station,
Ahmedabad City visited the residential house of the appellant
so as to inquire about his health as on date. The Police
Inspector has forwarded a report dated 26.06.2021 to the
Office of the Government Pleader, a copy of which has been
made available for our perusal.
3. It appears from the report that the appellant herein had met
with an accident on 23.09.2020 and sustained fracture on the
left lower limb. The certificate of the Orthopedic Surgeon as
well as the discharge summary has been attached with the
report.
4. Prima-facie, it appears that the appellant as on date is not
in a position to stand for a long period or walk freely. He is
able to sit on a chair. The entire purpose of asking the learned
AGP to undertake the exercise was with a view to see that if
the appellant surrenders pursuant to the order of Prevention of
Detention, then we may permit the learned counsel appearing
for the appellant to amend this appeal by permitting the
appellant to challenge the order of detention before this very
Court.
5. However, having regard to the condition of the appellant,
we are of the view that it will be too-much for this Court to
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
ask him to surrender at this point of time. In such
circumstances, we adjourn this matter for a period of four
weeks.
We leave it to the appellant to take the final call to surrender
on or before the next date of hearing. If the appellant
surrenders and a statement is made to that effect then this
Court may permit the learned counsel to amend the appeal
memo and permit the appellant to challenge the order of
detention.
Post this matter on 26.07.2021 on top of the board."
4. This appeal was last heard on 26.7.2021. On that date a
statement was made by Mr. Hardik Dave, the learned counsel
appearing for the appellant and confirmed by Mr. Chintan
Dave, the learned AGP appearing for the State that the
appellant has surrendered and he has been taken in preventive
detention. In such circumstances, we permitted Mr. Dave to
amend the appeal and permitted him to challenge the order of
detention itself before this Court. Accordingly the necessary
amendment was carried out. One copy of the amended petition
also was furnished to Mr. Dave, the learned AGP.
5. In view of the aforesaid, we now proceed to look into
the legality and validity of the order of detention rather than
asking the appellant to file a fresh writ-application and
challenge the order of detention. We have adopted this mode
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
in the peculiar circumstances of the case and we clarify that
our order should not be cited as a precedent. We have
permitted the appellant to challenge the legality and validity of
the order of detention before us keeping in mind that couple
of months back he met with a very serious accident and has
suffered grievous hurt. This is what we have observed in our
order dated 28.6.2021 referred to above.
6. It appears from the materials on record that the appellant
herein has been preventively detained on the strength of the
order dated 16.6.2018 passed by the Police Commissioner,
Ahmedabad City. The order of detention has been passed under
the provisions of the Gujarat Prevention of Anti-Social
Activities Act, 1985. The appellant herein has been branded as
a 'dangerous person' as defined under Section 2(c) of the
PASA. The detaining authority in the grounds of detention has
relied upon two First Information Reports lodged at the Vadaj
Police Station, Ahmedabad. The details are as under :-
Sr. Date of Police Section Seized Date of Date of
No. Station Crime muddamal arrest/bail disposal/
Register No. order
1 Vadaj Police As per Suicide 23.2.16 Pending in
Station Sec.306 note Anticipatory the Court
CR No.I-27/16 IPC 2. Book bail
Dt.31.1.16 valued at Dt.18.2.16
Rs.00
2 Vadaj Police As per 4.6.18 Investigation
Station Sections ___ Anticipatory is pending
CR No.I-73/18 324, 323 bail
Dt.5.4.18 506(2), 29.5.18
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
114 and
as per
Sec.135(1)
of the GP
Act
7. Over and above the two First Information Reports it
appears that the detaining authority has also placed reliance on
two statements of witnesses whose identity has not been
disclosed in public interest. We take notice of the fact that so
far as the first case is concerned, the same is for the offence
punishable under Section 306 of the Indian Penal Code. The
said offence was registered in February, 2016. In connection
with the said offence the appellant-detenue was ordered to be
released on anticipatory bail. This prosecution has something
to do with a person from whom the appellant had borrowed
money and the said amount was not being re-paid by the
appellant herein as per the allegations. So far as the second
offence is concerned, the same is for the offence punishable
under Section 324 of the Indian Penal Code. In this case also
the appellant was ordered to be released on anticipatory bail.
This is a case in which the appellant had been arraigned as a
co-accused in a fight which ensued between two brothers.
Ultimately, the two brothers settled the dispute and the FIR
came to be quashed by this High Court.
8. We are of the view, having regard to the materials on
record that the detention order could not have been passed by
C/LPA/1121/2018 JUDGMENT DATED: 28/07/2021
the detaining authority branding the appellant as a 'dangerous
person'. It is now well settled by a catena of decisions that
mere registration of the offence under the Indian Penal Code
by itself would not be sufficient to clamp an order of
preventive detention. We are saying so because the two
offences registered as referred to above have no bearing with
maintenance of public order. In such circumstances referred to
above, we have no hesitation in quashing and setting aside the
impugned order of detention.
9. The order of detention dated 16.6.2018 passed by the
Police Commissioner, Ahmedabad City is hereby quashed and
set aside. The appeal is accordingly disposed of. The civil
application also stands disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
