Gujarat High Court
State Of Gujarat vs Fakir Aminabanu W/O Majidkhan ... on 26 October, 2021
Bench: Mauna M. Bhatt
C/CA/2148/2020 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2148 of 2020
In
R/LETTERS PATENT APPEAL NO. 989 of 2021
With
R/LETTERS PATENT APPEAL NO. 989 of 2021
In
SPECIAL CIVIL APPLICATION NO. 10086 of 2019
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STATE OF GUJARAT
Versus
FAKIR AMINABANU W/O MAJIDKHAN UMARKHAN PATHAN
==================================================================
Appearance:
MR K.M. ANATANI, ASSISTANT GOVERNMENT PLEADER(1) for the Applicant(s) No.
1,2,3
MR RAJESH M AGRAWAL(1253) for the Respondent(s) No. 1
MR VO JOSHI(5883) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 26/10/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
CIVIL APPLICATION No. 2148 OF 2020
Considering the averments made in the application, the cause
shown for delay of 270 days caused in preferring Letters Patent Appeal is
accepted and it is condoned. The application stands disposed of
accordingly. Rule is made absolute.
LETTERS PATENT APPEAL No.989 OF 2021
1. In this intra court appeal, the State has challenged the order of the
learned Single Judge dated 01.10.2019 passed in Special Civil
C/CA/2148/2020 ORDER DATED: 26/10/2021
Application No.10086 of 2019 whereunder the order of detention dated
02.05.2019 passed by the detaining authority in exercise of powers vested
under Section 3(2) of the Gujarat Prevention of Anti Social Activities
Act, 1985 ('the Act' for short) by detaining the petitioner as a detenue
under Section 2(c) of the Act has been set aside and the detenue has been
ordered to be set at liberty.
2. We have heard Mr. K.M. Antani, learned Assistant Government
Pleader for the appellant State. Though respondent is served and
represented, none appears. Perused the case papers.
3. On account of registration of an FIR against the detenue by
Visnagar Police Station being II CR No.41/2015 for the offence
punishable under Sections 20B and 29 of the NDPS Act and also
registration of II CR No.41/2015 for the offence punishable under the
said provisions, the proceedings under the Act was initiated by
respondent No.2 by Director General, CID Crime and Railway, Gujarat
State, Gandhinagar in exercise of powers vested under sub-section (1) of
Section 3 of the Act detaining the detenue on the ground of indulging in
illicit trafficking which resulted in an order being passed on 02.05.2019.
On the order of detention being supplied to the petitioner along with the
grounds for detention, same was challenged before the learned Single
Judge. The contention raised before the learned Single Judge found
C/CA/2148/2020 ORDER DATED: 26/10/2021
favour and it came to be held that subjective satisfaction arrived at by the
detaining authority cannot be said to be legal, valid and in accordance
with law, inasmuch as the offences alleged in the FIR registered against
the detenue cannot have any bearing on the public order as required under
the Act for preventive detention and relevant prevalent laws or sufficient
enough to take care of the situation and the allegations that have been
levelled against the detenue cannot be said to be germane for the purpose
of bringing the detenue within the purview of the meaning as defined
under the Act viz. Section 2(c), i.e. 'dangerous person'. The said
provision reads thus:
"2(c) "dangerous person" means a person, who either by
himself or as a member or leader of a gang, habitually
commits, or attempts to commit or abets the commission of
any of the offences punishable under Chapter XVI or
Chapter XVII of the Indian Penal Code or any of the
offences punishable under chapter V of the Arms Act, 1959."
4. A plain reading of the above provision would clearly indicate that a
person would become dangerous who either by himself or as a member or
leader of a gang, habitually commits, or attempts to commit or abets the
commission of any of the offences punishable under Chapter XVI or
Chapter XVII of the Indian Penal Code or any of the offences punishable
under chapter V of the Arms Act, 1959. Such person would become
C/CA/2148/2020 ORDER DATED: 26/10/2021
dangerous or menace to the society and to ensure that there is peace
prevalent in the society, such person is required to be detained by way of
preventive detention. Learned Single Judge in the instant case has
noticed that except general statement made, there is no material on record
to show that the detenue is acting in such a manner which is dangerous to
the public order by relying upon the judgment of the Hon'ble Apex Court
in Pushker Mukherjee vs. State of West Bengal - AIR 1970 SC 852.
Though learned Assistant Government Pleader has tried to buttress his
arguments by contending that on account of the acts of the detenue there
is every likelihood of detenue being threat for the society and peace in the
society being polluted by the detenue, we are unable to agree to the said
contention, inasmuch as the registration of every FIR on account of a
criminal act perpetrated by the individual by simpliciter itself would not
form the basis for terming such a person as 'dangerous person' construed
that such person would be menace to the society. If they being as
objective assessment and subjective satisfaction by the detaining
authority that person sought to be detained would be menace to the
society are harmful to the society or dangerous to the society, the order of
the detention cannot be sustained. In the instant case, learned Single
Judge has taken into consideration all the relevant aspects in a holistic
manner and after as evaluating the same he has arrived at a conclusion
that order of detention is liable to be interfered and has set aside the order
C/CA/2148/2020 ORDER DATED: 26/10/2021
of detention and set the detenue at liberty by holding detention order
would in no manner be construed as prejudicial to the interest of the
State. Said finding is just and proper and we do not find that there being
any infirmity in the order passed by the learned Single Judge calling for
exercise of our interference in this appeal. Hence, appeal stands
dismissed as are without merit.
(ARAVIND KUMAR,CJ)
(MAUNA M. BHATT,J)
Bharat
