NOORMAMAD @ NUKO ILYAS KATIYA v. STATE OF GUJARAT THRO SECRETARY & 2

========================================================= NOORMAMAD @ NUKO ILYAS KATIYA - Petitioner(s) Versus STATE OF GUJARAT THRO SECRETARY & 2 - Respondent(s) ========================================================= Appearance : MS JAYSHREE C BHATT for Petitioner, Mr. Devang Dave, AGP for Respondent(s) : 1, SERVED BY RPAD - (R) for Respondent(s) : 2, RULE SERVED BY DS for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.J. DESAI Date : 01/11/2012 ORAL JUDGMENT

By way of this petition, the detenu has challenged the order of detention dated

30.08.2012 passed by respondent No. 2, District SCA/12117/2012 JUDGMENT Magistrate Rajkot under the provisions of sub- sec(2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA Act”).

Learned advocate, Ms.Jayshree C. Bhatt appearing for the petitioner-detenu has invited my attention to the order of detention dated

30.08.2012 by which the detenu was arrested and sent to Ahmedabad Central Jail. The grounds of detaining the accused are that one offence was registered against the petitioner under the provisions of Section 5,6,8,10 of the Mumbai Animal Preservation Act, Section 114 of the IPC and 11-L of the Animal Encroachment Act. He is, therefore, a “cruel person” as defined under Section 2(bbb) of the PASA Act. Learned advocate appearing for the petitioner has submitted that, except this solitary offence, there is no material with the detaining authority to detain the petitioner under the provisions of PASA Act. It is submitted that the order is vitiated because only on the basis of one offence registered against the petitioner, and in absence of any other material to show involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a cruel person. The definition of cruel person requires SCA/12117/2012 JUDGMENT habitual involvement and, therefore, the subjective satisfaction and the consequential order are vitiated.

Learned AGP Mr.Devang Dave appearing for the State has opposed this petition.

Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of “cruel person” as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs as under:- “2(bbb) “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 (Bom.LXXII of 1954)”.

It is clear from reading of the definition that the person to be branded as a cruel person has to be either a member or leader of a gang habitually committing or attempting to commit or abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term “habitually” examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring one offence registered SCA/12117/2012 JUDGMENT against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitual or repetitively involved in the offences.

Under the circumstances, the subjective satisfaction that the petitioner is a cruel person on the basis of which he has been detained is vitiated.

The petition deserves to be allowed and the same is allowed. The impugned order of detention passed by respondent No. 2, District Magistrate, Rajkot dated 30.08.2012 detaining detenu-Noormamad @ Nuko Ilyas Katiya is hereby quashed and set aside. The detenu be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted. bhati* (A.J. Desai, J.)