IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4277 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================================= MEHBOOB GAFARBHAI TARAKBAN- KHATKI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance :
MS SUBHADRA G PATEL for Petitioner(s) : 1, MR DEVANG DAVE AGP for Respondent(s) : 1, 3, RULE SERVED BY DS for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 09/07/2012 ORAL JUDGMENT
1) This petition is directed against the order of detention dated 25.02.2012 passed by respondent No.2, in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short” the Act) by detaining the detenue as a “cruel person” as defined under Section 2(bbb) of the Act.
2) Learned advocate for the detenue submits that the registered case/s under the Prevention of Cruelty to Animals Act, 1960, would not indicate anything to support disturbance to public order nor have the activities of the detenue affected adversely the maintenance of public order and, therefore, the order of detention passed by the detaining authority cannot be sustained in law and is required to be quashed and set aside.
3) Mr. Devang Dave, learned AGP has opposed the petition and supported the order of detention in letter and spirit.
4) Having heard the learned counsel for the parties, on perusal of record, considering the definition of 'cruel person' “means a person who either by himself or as member or leader of a gang habitually commits or attempts to commit, abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954” contained in Section 2(bbb) of the PASA Act and the law laid down by the Apex Court in the case of Gopalanachari vs. State of Kerala, reported in AIR 1981 SC 674, where the Apex Court considered and reiterated the law on personal liberty vis-a-vis rule of law and procedure contemplated in Article 21 of the Constitution of India which means fair and not formal procedure and Article 22 which specifically spells out the procedural safeguards for preventive and punitive detentions and a law providing for such detention should conform to Article 22 of the Constitution of India, while referring to the decisions of the Apex Court in the case of Maneka Gandhi reported in  1 SCC 248 and in the case of Hoskot reported in (1978) 3 SCC 544, and as held by the learned Single Judge of this Court vide Oral Judgment dated 21.2.2005, in Special Civil Application No.15105 of 2004 [Iliyas Mohammad hi vs. Commissioner of Police], and keeping in mind the object of detention law being prevention and not punishment, this Court is of the opinion that the activities of the detenue cannot be said to be adversely affecting the maintenance of public order and at the most fall under the maintenance of “law and order”. Hence, the subjective satisfaction arrived at by the detaining authority is vitiated.
5) In the result, the petition is allowed. The order of detention dated 25.02.2012 passed by the respondent No.2 is quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.
PIYUSH [ANANT S. DAVE, J.]