IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: SURAT

SPECIAL CRIMINAL APPLICATION NO.________ OF

2024

In the matter under

Article 226 and 227 of
Constitution of India;
And
In the matter under
Article 14 and 21 of
Constitution of India;
And

In the matter under the

Gujarat Prevention of
Anti-Social Activities
Act, 1985;
And
In the matter challenging
the order passed by
Commissioner of Police.
Surat dated 23.05.2024
whereby present
petitioner is ordered to
be detained at the
Ahmedabad Central Jail,
Ahmedabad;
And
In the matter between,

Mrs. Sonalben w/o Sureshbhai Rathod

Age: 28 Years, Gender: Female, … Petitioner

(Presently lodged at Ahmedabad Central Jail,

Ahmedabad since 23/05/2024)

Through Her Husband-

Mr.Sureshbhai Babubhai Rathod

Age: 48 Years, Gender: Male,

Resident of Tatanagar,
Tavrigam, Ta. Jalalpor,
Dist. Navsari, Gujarat.
Date of Detention- 23/05/2024

Versus

1. The State of Gujarat

Notice to be served through the
Secretary, Home Department,
Sachivalay, Gandhinagar, Gujrat.

2. The Commissioner of Police, Surat

Office of the Commissioner of Police,
Athwalines, Surat.

3. The Jail Superintendent

Ahmedabad Central Jail,
Ahmedabad, Gujarat. … Respondents

TO,
HONOURABLE THE CHIEF JUSTICE AND
OTHER HONOURABLE JUDGES OF
HIGH COURT OF GUJARAT AT AHMEDABAD.
 Most respectfully sheweth that-
1. The Petitioner being citizen of India is
entitled to the rights provided under
Constitution of India and also to other
statutory rights. Respondent No. 1 herein
is State of Gujarat. Respondent No. 1
herein is also the State within the meaning
under Article 12 of Constitution of India.
Respondent No. 2 and 3 both are holding
high Posts in the Department of State
Government, who works for maintaining law
and order in the society and also for the
purpose of providing protection to the
citizens.

2. The petitioner states that he has been

detained by the Commissioner Of Police,
Surat i.e. Respondent No. 2 herein, vide
its order vide PCB/PASA/DTN/158/2024 dated
23.05.2024 under section 2(b) of Gujarat
Prevention of Anti-Social Activities Act,
1985. Annexed hereto and marked as
“Annexure A” is the copy of the order dated
23.05.2024 passed by the Respondent No. 2
detaining the petitioner along with the
paper book of the same.

3. The petitioner states that Commissioner Of

Police, Respondent No. 2 herein, by a
separate order dated 23.05.2024, pleased to
order that petitioner be detained at
Ahmedabad Central Jail, Ahmedabad.
4. The petitioner states that said order at
‘Annexure-A’ came to be executed on
23.05.2024. The petitioner further states
that at the time of execution of the above
said Detention Order petitioner was also
served with grounds of Detention along with
all other relevant documents. The said
documents are part of the ‘Annexure-A’
herein.

5. The petitioner states that being aggrieved

and dissatisfied with the above said order
of Detention and on the act of the
Detaining Authority and others, petitioner
is constrained to file this Petition for
Quashing and Setting aside above said
Detention Order at Annexure-A and also for
seeking direction to release the Petitioner
from detention forthwith, on following
amongst other Grounds which may canvass
during the course of arguments:

6. GROUNDS
A. It is respectfully submitted that the
detention order passed against the detenue
is in violation of the constitutional
guarantees enshrined under the
Constitution of India, more particularly
in violation of Article 21 and 22 of the
Constitution of India.

B. It is respectfully stated that the

petitioner has been detained for
 commission of one offence. The details of
which are as under-

Police Date of F.I.R. Section

Station F.I.R. No.
Sachin 20/05/2024 CR. No. U/s 65(e)(a)
Police Part-C and 81 of
Station, 112100542 the Gujarat
Surat. 41224 of Prohibition
2024 Act, 1949
and Gujarat
Prohibition
Amendment
Act, 2017

C. The petitioner submits that the reasons

assigned in the grounds for detention
order is registration of one F.I.R.
against the petitioner, which is not
sufficient to pass the detention order.

D. Further, it is submitted that the

petitioner was lastly enlarged on regular
bail on 22/05/2024. Thereafter, the said
proposal was sent to Commissioner Of
Police, Surat on 23/05/2024, however, the
impugned detention order was passed on
23/05/2024 and the same was executed upon
the present petitioner 23/05/2024 which in
the respectful submission of the present
petitioner in violation of the judgement
 passed by this Hon’ble Court in the case
of Kalidas Chandubhai Kahar V/s State of
Gujarat and Ors. (1993 (2) GLR Vol. XXXIV
1659).

E. It is respectfully stated that, there was

no material on record of the case to
demonstrate that the detenue had either
continued or was likely to continue his
alleged anti-social activity after having
been released on bail and therefore, the
subjective satisfaction of the detaining
authority is vitiated and therefore, the
impugned order of detention may kindly be
quashed and set aside.

F. It is respectfully stated that, the

Detaining Authority has wrongly considered
section 9 of the Gujarat Prevention of
Anti-Social Activities Act, 1985. It is
respectfully stated that the detaining
authority has failed to take into
consideration the less drastic remedy.
Therefore, also the detention order may
kindly be quashed and set aside.

G. The petitioner submits that that order of

impugned detention deserves to be quashed
and set aside on the ground that two
offences registered against the detenue
before the concerned police station is not
of such magnitude and intensity as to have
the effect of disturbing the public order
 so as to pass an order under Section 3(2)
of the PASA Act.

H. It is most respectfully stated that it is

alleged in the grounds of the detention
that the detenue is a ‘Bootlegger’ as per
the section 2(b) of the PASA Act and his
activities are prejudicial to the
maintenance of the public order. In this
regard, it is respectfully stated that, in
the present case the detaining authority
has failed to substantiate that the
alleged anti-social activities of the
detenue adversely affected or are likely
to affect the maintenance of public order.
It may be that the detenue is a
‘Bootlegger’ within the meaning of section
2(b) of the PASA Act, but merely because
the detenue is termed as ‘Bootlegger’ she
cannot be preventively detained under the
provisions of the Act, unless as laid down
in sub-section 4 of section 3 of the Act,
her activities as a ‘Bootlegger’ affect
adversely or are likely to affect
adversely the maintenance of public order.
The order of detention cannot, therefore,
be upheld.

I. The petitioner submits that merely

registration of one F.I.R. is not
sufficient to fulfil requirement of
habitually committing of offence as
required under section 2(b) of the PASA
Act.
J. The petitioner submits that reasons
assigned in the grounds for detention
order is she is a ‘Bootlegger’ which in
respectful submission will not fall under
the definition.

K. The petitioner submits that the material

that was available with the detaining
authority was one offence registered
against the detenue and statement of
witnesses and on that basis, it cannot be
said that the activity of the detenue has
become a threat to the maintenance of
'public order' and society. Mere
involvement of the detenue in such
activity may not amount to prejudicial to
the maintenance of public order by the
detenue and mere mention of them, unless
supported by any evidence, cannot be said
to be material germane for the purpose of
arriving at the subjective satisfaction
that the activity of the detenue is
prejudicial to the maintenance of 'public
order' and society. The commission of
impugned offence does not exhibit or
disclose that the petitioner is doing
infraction of law in an organized or
systematic manner so as to come to the
conclusion that there is no alternative
remedy under the general law but to
preventively detain the petitioner.
L.The petitioner submits that the subjective
satisfaction arrived at by the detaining
authority cannot be said to be legal,
valid and in accordance with law inasmuch
as the offence alleged in the F.I.R. and
facts stated by the witnesses cannot have
any bearing on the public order since the
law of the land i.e. Indian Penal Code and
other relevant penal laws are sufficient
enough to take care of the situation and
that the allegations as levelled against
the detenue cannot be said to be germane
for the purpose of bringing the detenue
within the meaning of Section 2(b) of the
Act and unless and until the material is
there to make out a case that the person
concerned has become a threat and a menace
to the society so as to disturb the whole
tempo of the society and that the whole
social apparatus is in peril disturbing
public order at the instance of such
person. In view of the allegations alleged
in the impugned F.I.R.’ the activities of
the detenue cannot be said to be dangerous
to the maintenance of public order and at
the most fall under the maintenance of law
and order.

M. The petitioner submits that the order of

detention is required to be passed on the
basis of what has come to be known as the
subjective satisfaction of the detaining
authority and such subjective satisfaction
 has to be arrived at on two points.
Firstly, on the veracity of facts imputed
to the person to be detained and secondly,
on the prognostication of the detaining
authority that the person concerned is
likely to indulge again in the same kind
of notorious activities. Whereas, normal
laws are primarily concerned with the act
of commission of the offence, the
detention laws are concerned with
character of the person who has committed
or is likely to commit an offence. The
detaining authority has, therefore, to be
satisfied that the person sought to be
detained is of such a type that he will
continue to violate the laws of the land
if he is not preventively detained.

N. The petitioner submits that merely

registration of the F.I.R.’ alone cannot
be said to be sufficient enough to arrive
at subjective satisfaction to the effect
that the activities, as alleged, are
prejudicial to the public order or lead to
disturbance of public order. There has to
be nexus and link for such activities with
disturbance of the public order.

O. That the impugned order of detention is

also in violation of basic requirements of
the PASA Act as the same has been passed
in stereotype manner without considering
that whether the alleged activities of the
petitioner would amount to breach of
 “Public order” so as to detain the
petitioner under PASA Act.

P. The petitioner submits that the order of

Detention is required to be quashed and
set aside as the Detaining Authority had
not provided a reasonable opportunity of
representation before detaining the
detenue under the PASA Act and as such has
committed the violation of the principle
of natural justice and as such also the
detention order deserved to be quashed and
set aside forthwith.

Q. The petitioner submits that even otherwise

also said order of Detention is not
according to law and is not passed after
following procedure as prescribed under
the law and therefore it is required to be
quashed and set aside.

7. The petitioner craves leave to add, alter,

amend, and rescind any of the grounds
mentioned above.

8. The petitioner has no other alternative and

equally efficacious remedy available at law
but to approach this Hon’ble Court by way
of this petition.

9. The petitioner has not filed any other

application or petition with regard to
subject matter of present application
 before any courts of law in India except
the application referred to hereinabove.

10. The petitioner, therefore, humbly prays

that this Hon’ble Court be pleased to:

A. Admit this Special Criminal

Application;

B. Allow this Special Criminal

Application by quashing and setting
aside order of detention order being
DCB/MG/PASA/158/2024 dated 23.05.2024
at Annexure-‘A’ and also be pleased to
direct Respondent to release
petitioner from the Detention
forthwith;

C. That pending the admission and final

disposal of the present petition, be
please to stay the further execution
of the impugned order dated 23.05.2024
at Annexure-‘A’ and consequently
release the petitioner on bail;

D. Grant such other and further relief/s

as deemed just and proper in the
interest of Justice.

And for this act of kindness and justice,

Applicant shall as in duty bound forever
pray.

Place: Ahmedabad
Date: 18.06.2024

_______________________
Advocate for
Applicant
 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
DISTRICT: SURAT

SPECIAL CRIMINAL APPLICATION NO.______ OF 2024

Mrs. Sonalben w/o Sureshbhai Rathod

Through Her Husband –

Mr. Sureshbhai Babubhai Rathod ... Petitioner

Versus
The State of Gujarat & Ors. … Respondents

AFFIDAVIT
I, Mr. Sureshbhai Babubhai Rathod, male, aged
about 48 years, Husband of the present
petitioner, residing at the address mentioned
in the cause title, do hereby solemnly affirm
and state on oath as under-
I am the Husband of the petitioner (Detenue)
and conversant with the facts and
circumstances of the case and am competent to
depose on behalf of petitioner, that what is
stated hereinabove is true to the best of my
knowledge information and belief and I
believe the same to be true and correct.
I have gone through a memo of petition and I
solemnly affirm and state what is stated in
para nos. 1 to 5 are true to the best of my
knowledge and information and para no. 6 are
submissions of law and para no.7 to 9 is true
to the best of my personal knowledge and para
no.10 is a prayer clause which is based upon
legal advice of advocate.

I state that the annexures are produced with

the accompanying petition are true copies of
their original documents.

Solemnly affirmed at _________ on ____ June,

2024.

___________________________
(DEPONENT)

Explained in Gujarati and

Identified by,

_______________

Advocate
 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
DISTRICT: SURAT

SPECIAL CRIMINAL APPLICATION NO._______ OF 2024

Mrs. Sonalben w/o Sureshbhai Rathod

Through Her Husband –

Mr. Sureshbhai Babubhai Rathod … Petitioner
Versus
The State of Gujarat & Ors. …Respondents

I N D E X

Sr. Annexures Particulars. Page

No. No
1. - Memo of Petition.

2. A A copy of the order being

PCB/PASA/DTN/158/2024 dated
23.05.2024 passed by the
Respondent No. 2 detaining
the petitioner.
3. - Paper Book
 Date of Detention- 23/05/2024

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: SURAT

SPECIAL CRIMINAL APPLICATION NO.______ OF 2024

Mrs. Sonalben w/o Sureshbhai Rathod

Through Her Husband –

Mr. Sureshbhai Babubhai Rathod …Petitioner
Versus
The State of Gujarat & Ors. …Respondents

SYNOPSIS

 The petitioner herein is detained by the

Commissioner Of Police, Surat, under the
provisions of the Gujarat Prevention of Anti-
Social Activities Act, 1985.

 That the petitioner has been detained as a

‘Bootlegger’ as defined under section 2 (b) of
the PASA Act and has been detained at the
Ahmedabad Central Jail, Ahmedabad, Gujarat for
the commission of one offence under the
 provisions of the Gujarat Prohibition Act,
1985.

 Hence, the present petition under the Article

226 and 227 of the Constitution of India
challenging the order dated 23/05/2024 passed
by the Commissioner Of Police, Surat detaining
the petitioner at the Ahmedabad Central Jail,
Ahmedabad on the grounds mentioned in the
petition.

Date of Detention- 23/05/2024