IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT : AHMEDABAD

SPECIAL CIVIL APPLICATION NO. OF 2022

Montusingh alias Montu Devisinh Rajput …Petitioner

Versus

State of Gujarat & Ors. …Respondents

INDEX

SR. ANNEX. PARTICULARS PAGE

NO. NO.
1. -- List of Events

2. -- Memo of petition

3. A Copy of Detention Order

dated 11.09.2017.

4. B Copy of Committal Order

dated 11.09.2017 and
grounds for detention.

5. C Copies of FIRs filed against

‘Colly’ the applicant.

Actual date of detention: 25.04.2022

 A

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT : AHMEDABAD

SPECIAL CIVIL APPLICATION NO. OF 2022

Montusingh alias Montu Devisinh Rajput …Petitioner

Versus

State of Gujarat & Ors. …Respondents

SYNOPSIS

By way of the present petition under Article 226 of the

Constitution of India, the petitioner begs to challenge the
detention order dated 11.09.2017 passed by the respondent
No.2 herein against the petitioner under the provisions of
Gujarat Prevention of Anti-Social Activities Act, 1985.

It is stated that in connection with the various FIRs

against unknown persons, the applicant came to be
subsequently implicated. The details of which are as under:

Sr. Date of FIR FIR No. & Section

No. Police Station
1. 25.01.2017 FIR being C.R. No. I- 457 and 380
29/2017 registered of IPC
with Vadaj Police
Station
2. 31.01.2017 FIR being C.R. No. I- 454, 457
24/2017 registered and 380 of
with Shahibaug Police IPC
Station
3. 02.02.2017 FIR being C.R. No. I- 454, 457
20/2017 registered and 380 of
with Bapunagar IPC
Police Station
4. 04.02.2017 FIR being C.R. No. I- 380, 457,
23/2017 registered 114 and 411
with Shaherkotda of IPC
Police Station
5. 23.02.2017 FIR being C.R. No. I- 380, 454
37/2017 registered and 457 of
with Bapunagar IPC
 B

Police Station
6. 24.02.2017 C.R. No. I-27/2017 454, 457,
registered with 380 and 114
Ghatlodia Police of IPC
Station
7. 24.02.2017 FIR being C.R. No. I- 457 and 380
61/2017 registered of IPC
with Vadaj Police
Station

In the abovesaid FIRs, the applicant came to be enlarged

on bail by the concerned courts.

Exercise of powers of Detention under PASA Act is

nothing but misuse of powers under the PASA Act. That the
detention power cannot be used merely because there is an
empowerment by the statute. It is submitted that to have the
power under the statute and to exercise the same, both are the
different things. When the liberty of a person is to be taken
away without trial, such draconic power of detention should be
rarely used. It is submitted that in a number of cases, this
Hon’ble Court as well as the Hon’ble Supreme Court of India,
deprecated the practice of frequently using detention powers.

HENCE, THIS PETITION.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT : AHMEDABAD

SPECIAL CIVIL APPLICATION NO. OF 2022

In the matter under Articles

14, 19, 21 and 22 of the
Constitution of India;

AND

In the matter under Article

226 of the Constitution of
India;

AND

In the matter of quashing of

detention order dated
11.09.2017 passed by the
Respondent No. 2, Police
Commissioner, Ahmedabad
City illegally detaining the
petitioner under Section
3(2) of PASA;

AND

In the matter between:

Montusingh alias Montu Devisinh Rajput (Male)

Aged 21 years,

Residing at: 28, Pushpakunj Society,

Thakkarnagar, Nikol Road,
Bapunagar,
Ahmedabad City.

Village Jegol (Odhava),

Taluka Dantiwada,
District Banaskantha.

(Petitioner-Detenue is detention
at Central Jail, Rajkot, detained on 25.4.2022)

Through his Mother

Sooryaben Devisinh Rajput
Aged 50 years,
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Residing at : Patel Vas,

Odhava,
Taluka-Dantiwada,
District-Banaskantha …Petitioner
(Orig. Detenue)

Versus

1. State of Gujarat
(Notice be served through
The Secretary,
Home Department
New Sachivalaya
Gandhinagar)

2. Police Commissioner,
Office of Police Commissioner,
Ahmedabad City

3. The Jailor,
Central Jail,
Rajkot. … Respondents

To
Hon’ble The Chief Justice
and other Hon’ble Judges
of the Hon’ble High Court
of Gujarat at Ahmedabad
Humble petition of the
petitioner abovenamed

MOST RESPECTFULLY SHEWETH THAT:

1. By way of the present petition under Article 226 of the

Constitution of India, the petitioner begs to challenge the

detention order dated 11.09.2017 passed by the

respondent No.2 herein against the petitioner under the

provisions of Gujarat Prevention of Anti-Social Activities

Act, 1985 (hereinafter referred to as “PASA” for the sake

of brevity). The said detention order is ex-facie illegal,

arbitrary, unjust, malafide and violative of fundamental

 3

rights of the petitioner guaranteed under Articles 14, 21

and 22 of the Constitution of India. Annexed hereto and

marked as ANNEXURE – A is a copy of the said

Detention Order dated 11.09.2017. Along with the above

Detention Order, the detenu has been served with

Committal Order dated 11.09.2017 by respondent No.2

sending the detenu to Central Jail, Rajkot. Annexed

hereto and marked as ANNEXURE – B is a copy of the

said Committal Order and grounds for detention.

2. It is stated that in connection with the various FIRs

against unknown persons, the applicant came to be

subsequently implicated. The details of which are as

under:

Sr. Date of FIR FIR No. & Section

No. Police Station
1 25.01.2017 FIR being C.R. No. I- 457 and 380
29/2017 registered of IPC
with Vadaj Police
Station
2 31.01.2017 FIR being C.R. No. I- 454, 457
24/2017 registered and 380 of
with Shahibaug Police IPC
Station
3 02.02.2017 FIR being C.R. No. I- 454, 457
20/2017 registered and 380 of
with Bapunagar IPC
Police Station
4 04.02.2017 FIR being C.R. No. I- 380, 457,
23/2017 registered 114 and 411
with Shaherkotda of IPC
Police Station
5 23.02.2017 FIR being C.R. No. I- 380, 454
37/2017 registered and 457 of
with Bapunagar IPC
Police Station
6 24.02.2017 C.R. No. I-27/2017 454, 457,
 4

registered with 380 and 114

Ghatlodia Police of IPC
Station
7 24.02.2017 FIR being C.R. No. I- 457 and 380
61/2017 registered of IPC
with Vadaj Police
Station

In the abovesaid FIRs, the applicant came to be

enlarged on bail by the concerned courts. Annexed

hereto and marked as ANNEXURE - C Collectively are

the copies of FIRs filed against the applicant.

3. It is submitted that the petitioner is detained under the

provisions of PASA solely because the petitioner is

implicated in the FIR’s against unknown persons.

4. It is submitted that exercise of powers of Detention under

PASA Act is nothing but misuse of powers under the

PASA Act. That the detention power cannot be used

merely because there is an empowerment by the statute.

It is submitted that to have the power under the statute

and to exercise the same, both are the different things.

When the liberty of a person is to be taken away without

trial, such draconic power of detention should be rarely

used. It is submitted that in a number of cases, this

Hon’ble Court as well as the Hon’ble Supreme Court of

India, deprecated the practice of frequently using

detention powers. It is important to note that the law

declared by the Hon’ble Apex Court and Hon’ble High

 5

Court of Gujarat, is binding to the State and its

Authorities. Recently also, Division Bench of Hon’ble

High Court of Gujarat, in case of Artiben w/o.

Nandubhai Jayantibhai Sujnani Vs. Commissioner of

Police, deciding Letters Patent Appeal No. 2732/2010 in

judgment and order dated 28.03.2011 has held as under :

“Just because four cases have been registered

against the appellant-detenu under the Bombay
Prohibition Act, by itself, do not have any bearing
on the maintenance of public order. The appellant
may be punished for the alleged offences
committed by her but, surely, the acts constituting
the offences cannot be said to have affected the
even tempo of the life of the community much
less public health. It may be that the appellant
detenu is a 'bootlegger' within the meaning of
Section 2(b) of the PASA Act, but merely because
she is a 'bootlegger' she cannot be preventively
detained under the provisions of the PASA Act
unless, as laid down in sub-section (4) of Section
3 of the PASA Act, her activities as a 'bootlegger'
affect adversely or are likely to affect adversely
the maintenance of public order.”

Despite the law declared in various decision, the

respondent no.2 passed the order to detain the petitioner

under the PASA Act, solely relying on solitary offence

which is illegal and bad in law.

5. The petitioner respectfully states and submits that the

Hon’ble Apex Court, in the case of Deepak Bajaj Vs.

 6

State of Maharashtra, reported in (2008) 16 SCC 14 and

observed as under :

“Such a person that although such a detention

order is illegal he must yet go to jail though he will
be released later is a meaningless and futile
exercise.

10. It must be remembered that every person has

a fundamental right to liberty vide Article 21 of the
Constitution. Article 21, which gives the right to
life and liberty, is the most fundamental of all the
fundamental rights in the Constitution. Though, no
doubt, restrictions can be placed on these rights
in the interest of public order, security of the
State, etc., but they are not to be lightly
transgressed.

15. If a person against whom a preventive

detention order has been passed comes to court
at the pre-execution stage and satisfies the court
that the detention order is clearly illegal, there is
no reason why the court should stay its hands
and compel the petitioner to go to jail even though
he is bound to be released subsequently (since
the detention order was illegal). As already
mentioned above, the liberty of a person is a
precious fundamental right under Article 21 of the
Constitution and should not be lightly
transgressed. Hence, in our opinion, Alka
Subhash Gadia case cannot be construed to
mean that the five grounds mentioned therein for
quashing the detention order at the pre-execution
stage are exhaustive.”
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6. The petitioner respectfully submits that there are a large

number of cases which have established a law that

detention in case of solitary prohibition, under PASA Act

is against the law. The petitioner further submits that

except so-called false implication in offence of solitary

prohibition case against the petitioner, there is no other

material, on the basis of which the respondent-authorities

can come to a conclusion that the alleged activity of the

petitioner is affecting or likely to affect adversely the

maintenance of public order and therefore, the action of

passing the order of detention is illegal and bad in law.

7. The petitioner has no other alternative equally efficacious

remedy available to him except by way of the present

petition.

8. The petitioner states that he has not filed any other

petition with respect to the subject matter of the present

petition, either in this Hon’ble Court or in any other court

of India including the Hon’ble Supreme Court.

9. The petitioner craves leave to add, alter, delete or modify

any of the contents of the present petition in the interest

of justice.

10. The petitioner, therefore, prays that:

(A) Hon’ble Court be pleased to issue an appropriate writ,

order or direction, quashing and setting aside the
 8

impugned detention order dated 11.09.2017 passed by

Respondent No. 2 and be further pleased to direct
release of the present detenu forthwith;

(B) Pending admission, hearing and final disposal of the

petition, Hon’ble Court be pleased to direct the authority
to release the detenue;

(C) Any other and further relief/s as may be deemed just, fit
and proper in the facts and circumstance of the present
case may kindly be granted.

AND FOR THIS ACT OF KINDNESS AND JUSTICE THE

PETITIONER SHALL AS IN DUTY BOUND FOREVER PRAY.

Date : __.05.2022 Tejas M. Barot

Place : Ahmedabad Advocate for the petitioner

AFFIDAVIT

I, Sooryaben Devisinh Rajput, Aged 50 years, Residing at :

Patel Vas, Odhava, Taluka-Dantiwada, District-Banaskantha,
the Mother of the petitioner herein, do hereby on solemn
affirmation state that what is stated in paras 1 to __ is true to
the best of my knowledge information and belief and I believe
the same to be true, whereas what is stated in paras __ to __
are submissions of law. Para 10 contains the prayer clause.

Solemnly affirmed at Ahmedabad on this 2nd day of May, 2022.

___________________
DEPONENT
Explained & Identified
by me:

Advocate
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