DILAWARKHAN ISMAILKHAN PATHAN THROUGH SISTER IN LAW v. STATE OF GUJARAT & 2

HONOURABLE MR.JUSTICE MD SHAH ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= DILAWARKHAN ISMAILKHAN PATHAN THROUGH SISTER IN LAW - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= Appearance : MS BANNA S DUTTA for Petitioner(s) : 1, MS KRINA CALLA, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, 3, RULE SERVED BY DS for Respondent(s) : 1 - 2. ========================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 24/01/2012 ORAL JUDGMENT [1] This petition is directed against the order of detention dated

05.10.2011 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 detenu as a “cruel person” as defined under Section 2(bbb) of the Act. SCA/16166/2011 JUDGMENT [2] Learned advocate for the detenu submits that the registered case 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 detenu 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] 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 Menaka Gandhi reported in [1978] 1 SCC 248 and in the case of Hoskot reported in (1978) 3 SCC 544 and keeping in mind the object of detention law being prevention and not punishment, this Court is of opinion that the activities of the detenu cannot be said to be adversely affecting the maintenance of public order and at the most fall under the SCA/16166/2011 JUDGMENT maintenance of “law and order”.