SABIRKHAN @ THAPALA DARBAR @ SHEKHUDDIN ABDULHAMID BABI v. STATE OF GUJARAT

CORAM : MR.JUSTICE M.S.PARIKH Date of decision: 03/02/97 ORAL JUDGEMENT

1.(cid:9)By way of this petition under Article 226 of the Constitution of India the petitioner-detenu has brought under challenge the detention order dated 30/8/1996 passed by the respondent no.2 u/S. 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (Act No.16 of 1985), for short "the PASA Act".

2.(cid:9)The grounds on which the impugned order of detention passed by the authority have been placed on record of this petition at Annexure-B. They inter-alia indicate that the petitioner by himself has been indulging in criminal and anti-social activities of committing thefts of two wheelers such as scooters, Sunny Moped, etc., resulting in fear in the mind of people about the security of their two wheelers. The Detaining Authority has placed reliance upon seven offences of 1996, six registered in Karanj Police Station and one registered in Shahibaug Police Station, inter-alia under Section 379 of the Indian Penal Code. The particulars of such offences have been set out in the grounds of detention at Annexure-B.

3.(cid:9)It has been recited that the detenu's anti-social activity tends to obstruct maintenance of public order and in support of such conclusion statements of four witnesses have been relied upon. They indicate about two incidents dated 31/7/1996 and 4/8/1996 indicating beating in public the conncerned witnesses and creating atmosphere of fear amongst the people collected at the time of such incidents.

4.(cid:9)It is on the aforesaid incidents that the detaining authority has passed the impugned order of detention while also relying upon the aforesaid cases lodged against the petitioner. The petitioner has been stamped as a 'dangerous person' within the meaning of section 2(c) of the PASA Act.

5.(cid:9)I have heard the learned advocate for the petitioner and the learned G.P./A.G.P. for the State. The petitioner has challenged the aforesaid order of detention on number of grounds inter-alia on the ground that there is no material to indicate that the detenu's conduct would show that he is habitually engaged in the anti-social activities which can be said to be prejudicial to the maintenance of public order. This is a case of individual incidents affecting law and order and in the facts of the case would not amount to leading to conclusion that the same would affect public order. Reliance has been placed on the following decision of the Apex Court :- Mustakmiya Jabbarmiya Shaikh V/s. M.M. Mehta, C.P. reported in 1995 (2) G.L.R. 1268, where the incidents were quoted in paras : 11 and 12 of the citation and it has been submitted that facts of the present case run almost parallel to the facts before the Apex Court in Mustakmiya's case (supra).

6.(cid:9)In reply Mr. M.R. Anand, GP and Ms. Amiben Yagnik, AGP for the State have relied upon a decision in the case of Mrs. Harpreet Kaur Harvinder Singh Bedi v/s. State of Maharashtra and anr., reported in AIR 1992 SC

Comparing the facts of the present case with the facts in the case before the Supreme Court, it clearly appears that the decision in Mrs. Harpreet Kaur's case (supra) would not be applicable.

7.(cid:9)There are other grounds of challenge levelled against the impugned order of detention. However, in view of the fact that the petitioner would succeed directly on the strength of decision of Mustakmiya's case (supra), it is not necessary to deal with the other grounds. Hence, following order is passed :