Danish Gulam Mohammad Bagwan vs State of Gujarat and Others

Z.K. Saiyed, J.—By filing present petition the petitioner, under Article 226 of the Constitution of India, the petitioner has prayed to quash

and set aside the order of detention dated 5.7.2008 passed, against the petitioner, by the respondent No. 2-the Commissioner of Police,

Ahmedabad, in exercise of power under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short

GASA Act""). The detenu is branded as ""dangerous person"".

Heard the learned Advocate for the petitioner and learned AGP Mr. Nanavati for the respondents. No Affidavit in reply is filed by the

respondents controverting the averments made by the petitioner.

The detenu came to be detained as ""dangerous person"" on his involvement in the offences being (i) CR No. 55/2008 dated 28.1.2008, (2)

101/2008 dated 4.6.2008 and (3) 237/2008 dated 5.5.2008, all registered with Vejalpur Police Station, Ahmedabad.

It has been submitted by the learned Counsel for the petitioner that the allegations made against the detenu are not correct; that the material

collected by the detaining authority and looking to the statement recorded by the detaining authority it cannot be said that the alleged activities of

the petitioner would fall within the purview of ""dangerous person

I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the

learned A.G.P.

The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the petitioner. The detaining authority

has placed reliance on the aforesaid registered offences and statements of witnesses. After recording the subjective satisfaction about the detenu

being a dangerous person and with a view to preventing her from acting in a manner prejudicial to the maintenance of public order, the impugned

order of detention was passed by the detaining Authority.

Except the general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the

public order. There are number of decisions of this Court as well as the Hon''ble Apex Court on the point of relying on this point. In view of the

ratio laid down by the Hon''ble Supreme Court in the case of (i) The District Collector, Ananthapur and Another Vs. V. Laxmanna, (ii) Amanulla

Khan Kudeatalla Khan Pathan Vs. State of Gujarat and Others, and (iii) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of

Police and Others, the Court is of the opinion that the activities of the detenu cannot be said to be dangerous to the maintenance of pubic order. In

the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat reported in 2001 (1) GLH 393 , having considered the decision of

the Hon''ble Apex Court in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , this Court held that the cases wherein the

detention order are passed on the basis of the statements of such witness fall under the maintenance of ""law and order"" and not ""public Order"".

Applying the ratio of the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite

findings that there is threat to the ''public order'' and it is very clear that the present case would not fall within the category of threat to a public

order. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for

passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.

In the result, this petition is allowed. The impugned order of detention dated 5.7.2008 passed by the respondent No. 2-Police Commissioner,

Ahmedabad city, is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is

made absolute accordingly. Direct service permitted.