Gujarat High Court
Faem Mustakbhai Shaikh vs State Of Gujarat on 2 March, 2021
Bench: Mr. Justice Nath, Bhargav D. Karia
C/LPA/51/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 51 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 10295 of 2020
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FAEM MUSTAKBHAI SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR VALIMOHAMMED PATHAN(6383) for the Appellant(s) No. 1
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1,2,3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 02/03/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. We have heard Mr.Valimohammed Pathan, learned
counsel for the appellant and Ms.Shruti Pathak,
learned Assistant Government Pleader for the State
respondents.
2. The affidavitinreply 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 09.12.2020 passed by the learned Single Judge
in Special Civil Application No.10295 of 2020,
C/LPA/51/2021 ORDER
whereby the writ petition challenging the order of
preventive detention was dismissed.
4. Learned counsel for the appellant submitted that
there are only four cases registered against the
appellant. First being a case under Sections 324,
323, 294(B), 506(2) and 114 of the Indian Penal Code
and Section 135(1) of the Gujarat Police Act based on
an FIR dated 04.11.2019, the second is about an
offence under Sections 324, 323, 427, 435, 294(B),
506 and 114 of the Indian Penal Code and Section
135(1) of the Gujarat Police Act wherein the FIR had
been lodged on 15.02.2020, the third is about an
offence under Sections 323, 294(B), 506(2) and 114 of
the Indian Penal Code and Section 135(1) of the
Gujarat Police Act based on an FIR dated 25.03.2020
and the fourth is about an offence under Section 307
of the Indian Penal Code and Section 135(1) of the
Gujarat Police Act wherein the FIR had been lodged on
01.07.2020. 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 neither any disturbance of
public order nor the appellant can be said to be a
C/LPA/51/2021 ORDER
dangerous person. It is also submitted by the learned
counsel that the appellant had been falsely
implicated in the said four cases and he is already
on bail. It is also submitted that the appellant is
in custody since 08.08.2020. 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.Shruti 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 apart
from the four 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 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.
C/LPA/51/2021 ORDER
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 first three FIRs
related to an offence of causing hurt only and also
causing some damage to the property. In the fourth
case, the offence came to be registered for attempt
to cause death wherein the FIR was lodged against
unknown persons. By no stretch of imagination can we
hold that such 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
C/LPA/51/2021 ORDER
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.
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 dated 09.12.2020
passed in Special Civil Application No.10295 of 2020
is set aside. The detention order dated 08.08.2020 is
quashed. The appellant be set at liberty forthwith if
not required in any other criminal case.
(VIKRAM NATH, CJ)
(BHARGAV D. KARIA, J)
GAURAV J THAKER
