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SCA/12360/2009 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12360 of 2009
For
Approval and Signature:
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 ?
=========================================================
BADHA
KANA CHHELANA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MS
KRISHNA U MISHRA for
Petitioner(s) : 1,
Mr K L Pandya, Asstt.GOVERNMENT PLEADER for
Respondent(s) :
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 02/02/2010
ORAL
JUDGMENT
Leave
to amend.
The
petitioner-detenu has preferred this petition under Article 226 of
the Constitution of India for appropriate writ, order or direction
for quashing and setting aside the order dated 17.8.2009 passed by
District Magistrate, Porbandar whereby, in exercise of power under
sub-section (2) of section 3 of the Gujarat Prevention of Anti
Social Activities Act, 1985 (for short, ‘PASA Act’) the petitioner
has been detained as a bootlegger. In pursuance of the said impugned
order, the petitioner is detained in jail.
Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
No affidavit-in-reply is filed by the learned AGP on behalf of the
respondents controverting the averments made in the petition. The
affidavit-in-reply filed by the learned AGP on behalf of the
respondents is taken on record and considered.
From
the grounds of detention, it appears that two offences being CR.I.No.
62 & 258 of 2009 under sections 66 (1)b and 65(e) etc. under
the Bombay Prohibition Act, were registered with Ranavav police
station, wherein country liquor was found from the possession of the
detenu. On the basis of registration of these cases, the detaining
authority held that the present detenu was carrying on activities of
selling country liquor which is harmful to the health of the public.
It is held by the detaining authority that as the detenu is indulged
in illegal activities, it is required to restrain him from carrying
out further illegal activities i.e. selling of liquor. The detaining
authority has placed reliance on the above registered offences and
statements of unnamed witnesses. In the opinion of this court, the
activities of the detenu can, by no stretch of reasoning, be said to
be disturbing the public order. It is seen from the grounds that a
general statement that has been made by the detaining authority that
consuming liquor is injurious to health. In fact, a perusal of the
order passed by the detaining authority shows that the grounds which
are mentioned in the order are in reference to the situation of ‘law
and order’ and not ‘public order’. Therefore, on this ground, the
subjective satisfaction of the detaining authority is vitiated on
account of non-application of mind and the impugned order, therefore,
deserves to be quashed and set aside.
3. Except
two statements of the anonymous witnesses, there is no material on
record which shows that the petitioner-detenu is carrying out illegal
activities of selling liquor which is harmful to the health of the
public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki
v.Police Commissioner, Surat (2001 (1) GLH 393), having
considered the decision of the Hon’ble Apex Court in the case of Ram
Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this
court held that the cases wherein the detention order are passed on
the basis of the statements of such witnesses fall under the
maintenance of law and order and not public order .
4. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenu, the detaining authority must come to
a definite finding that there is threat to the ‘public order’ and it
is very clear that the present case would not fall within the
category of threat to a public order. In that view of the matter,
when the order of detention has been passed by the detaining
authority without having adequate grounds for passing the said order,
cannot be sustained and, therefore, it deserves to be quashed and set
aside.
6. In
the result, This Special Civil
Application is allowed. The impugned order of detention dated
17.8.2009 passed by the District Magistrate, Porbandar is quashed
and set aside. The detenu is ordered to be set at liberty forthwith
if not required in any other case. Rule is made absolute. Direct
service is permitted.
[M.D. SHAH, J.]
msp
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