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2012 Supreme(Guj) 181
2012 (3) GCD 1957 (Guj) (DB)
Hon’ble Mr. Justice V.M. Sahai &
Hon’ble Mr. Justice A.J. Desai
Ramzan Hanifbhai Qureshi (Gandhi)
Versus
State of Gujarat Thro The Secretary & Ors.
Letters Patent Appeal No. 605 of 20121—Decided on 26/03/2012
Appearance :
Mr. N.D. Nanavaty, Senior Counsel with Mr. Mitesh R. Amin, for the Appellant.
Ms. Jirga Jhaveri, AGP, for the Respondents.
Point in Issue :
Whether in the facts of the case order of detention against appellant as dangerous person sustatinable.
Headnote:Head Note :
Gujarat Prevention of Anti-Social Activities Act, 1985 (Guj Act No. 16 of 1985) — Sections 2(c) and 3 — Detention order — Urging him as a dangerous person — Challenged at pre-execution stage — Sustainable — There is no sustainable evidence that appellant is a dangerous person and acts assigned to him does not amount to disturbing the maintenance of public order — Sole and stale offence can not be covered under the definition of dangerous person or being habitual out.
Held :
From the records produced by learned Assistant Government Pleader, we do not find that after registration of the said case under Sections 307 and 427 of IPC, the appellant indulged in any other criminal or unlawful activity nor any FIR or complaint was registered against him nor there is any material on record to show that after 2004, the appellant has indulged in similar activities. Even in the FIR registered as C.R. No. I-79/2011 dated 15.7.2011, it has not been alleged that he has inflicted any injury on Abdulbhai Nathubhai Goghari. Therefore, the appellant cannot be said to be a dangerous person as defined under Section 2 (c) of the PASA nor it can be said that he commits any offence habitually under the provisions of Indian Penal Code or Arms Act. [Para 11]
Court is of the opinion that it is a sole and stale offence which would not be covered under the definition of ‘dangerous person’ or being a habitual one. Though the learned Assistant Government Pleader has relied upon the said offence of 2004, there is no mention about the same in the impugned detention order and, therefore also, the subjective satisfaction arrived at by the authority is vitiated. [Para 12]
Law Laid Down :
Preventive detention is resorted by way of precaution prevent mischief to community or Society but it has to pass the list of Articles 21 and 22 of Constitution.
V.M. Sahai, J.—Admit. Ms. Jirga Jhaveri, learned Assistant Government Pleader waives service of notice of admission on behalf of respondents. Though the appeal is listed for admission, with the consent of the learned Counsel for the parties, we have taken up the appeal for final disposal today itself.
2. We have heard Mr. N.D. Nanavaty, learned Senior Counsel assisted by Mr. Mitesh R. Amin, learned Counsel appearing for the appellant and Ms. Jirga Jhaveri, learned Assistant Government Pleader appearing for the respondents. The learned Assistant Government Pleader has also produced the records.
3. By way of this Intra-Court Letters Patent Appeal, the appellant – Ramzan Hanifbhai Qureshi (Gandhi) - original petitioner No. 1 has challenged the judgment and order dated 12.3.2012 passed by the learned Single Judge in Special Civil Application No. 14921 of 2011 by which the learned Single Judge has dismissed the writ petition so far as the appellant, the petitioner No. 1 in the writ petition is concerned. Hence, this Letters Patent Appeal is confined only to the aforesaid appellant, original Petitioner No. 1.
4. The brief facts of the case are that an FIR was lodged by one Shri Noorbhai Nathubhai Goghari which was registered as C.R.No.I-97 of 2011 dated 15.7.2011 for the offences punishable under Sections 143, 147, 148, 149, 323 and 326 of IPC and also under Section 135 (1) of Bombay Police Act and Section 25 (1)(b) of Arms Act against the appellant herein and 25 other persons before Karanj Police Station, inter alia, alleging that when he came to attend the court proceedings pending against him and others in the Court of City Sessions Judge, Ahmedabad City, Ahmedabad, on 30.6.2011, he had a quarrel and scuffle in the Court compound with appellant and Yusuf, petitioner No. 2 in the writ petition. It is alleged that appellant threatened to kill Noorbhai Nathubhai Goghari. However, nothing happened as the dispute was resolved. It was further alleged that on the next date i.e. on 15.7.2011 when he was returning after attending the Court proceedings along with his brother Abdulbhai Nathubhai Goghari and six other persons, the appellant and Yusuf, petitioner No. 2 who were armed with revolver, were advancing towards him. The advocates present there, took Noorbhai Nathubhai Goghari in STD booth. It was alleged that the appellant, who was armed with iron phant, gave blows to his brother on his left eye and other accused persons gave kick and fist blows to the persons present with him. In pursuance of registration of FIR, the appellant along with other accused was arrested. However, he has been granted bail. Thereafter, considering the said offence, the order of preventive detention dated 5.10.2011 under Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as ‘PASA’) has been passed against the appellant treating him as a ‘dangerous person. The appellant before he is detained by the authority filed the writ petition challenging the same on various grounds.
4.1 It is stated that except Petitioner Nos. 3,10 and 11, other petitioners were enlarged on bail either by the Sessions Court or by this Court. Since the petitioners apprehended that in pursuance of the order of detention, they will be arrested and detained, hence they preferred writ petition being Special Civil Application No. 14921 of 2011 before this Court.
5. Learned Senior Counsel appearing for the appellant has urged that after the appellant was granted bail, an order of preventive detention had been passed on 5.10.2011 against the appellant under Section 3 of the PASA branding him as ‘dangerous person’ under Section 2 (c) of the PASA. He urged that there were in all 13 accused, out of which against three accused persons, no detention orders have been passed. So far as 10 remaining accused persons are concerned, detention order with regard to 8 persons have been quashed and set aside at the pre-detention stage by the learned Single
