IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 3757 of 1996
For Approval and Signature:
Hon'ble MR.JUSTICE K.R.VYAS
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
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AMARSING CHARTURSING CHAUHAN
Versus
COMMISSIONER OF POLICE
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Appearance:
MS DR KACHHAVAH , learned Advocate for the
Petitioner.
MR UR BHATT, learned Assistant Government Pleader
for the respondents.
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CORAM : MR.JUSTICE K.R.VYAS
Date of decision: 24/07/96
ORAL JUDGEMENT
Petitioner Amarsinh Chatursinh Chauhan , by way
of this petition under Article 226 of the Constitution of
India, has challenged the order of his detention dated
2-3-96 passed by the Commissioner of Police, Ahmedabad
city , under section 3 (l) of the Gujarat Prevention of
Anti Social Activities Act, 1985.
In the grounds of detention supplied to the
detenu, the detaining authority has placed reliance on
three pending investigation cases registered under the
provisions of the Bombay Prohibition Act and the
statements of four witnesses of the alleged incidents of
1-2-96 and 15-2-96 wherein the witnesses were beaten
because they refused to store illicit liquor in their
residential premises and also on the ground that they are
the informants of the police and that when the people
gathered, the detenu rushed towards the crowd with an
open knife with the result that an atmosphere of fear and
terror was created in the area. Considering this
material, the detaining authority recorded a finding that
the the detenu is a “bootlegger” within the meaning of
section 2 (b) of the said Act and with a view to
preventing the detenu from acting in any manner
prejudicial to the maintenance of public order, it was
necessary to pass the order of detention against him and,
therefore, the impugned order is passed, which is under
challenge in the present petition.
Ms Kachhavah, learned Advocate appearing for the
detenu, has raised number of contentions. However, it is
not necessary to deal with each of them as the present
petition can be disposed off on the first contention
itself. Ms Kachhavah has submitted that the subjective
satisfaction arrived at by the detaining authority that
the detenu is a bootlegger is not genuine as the alleged
activities of the detenu as a bootlegger do not affect
adversely or are not likely to affect adversely the
maintenance of public order. In the submission of Ms
Kachhavah, the offences alleged against the detenu in the
grounds of detention and also the allegations made by the
witnesses could not be said to have created any feeling
of insecurity or panic or terror among the members of the
public of the area in question giving rise to the
question of maintenance of public order. In support of
her submission, reliance is placed by Ms Kachhavah on the
decision of the Supreme Court in the case of Piyush
Kantilal Mehta vs Commissioner of Police, Ahmedabad city
AIR 1989 SC 491.
The Supreme Court in Piyush Kantilal Mehta’s case
( supra) has held that it may be that the detenu is a
bootlegger within the meaning of S.,2 (b) of the Act, but
merely because he is a bootlegger, he cannot be
preventively detained under the provisions of the Act
unless, as laid down in sub-section (4) of S.3 of the
Act, his activities as a bootlegger affect adversely or
are likely to affect adversely the maintenance of public
order. A person may be very fierce by nature, but so
long as the public generally are not affected by his
activities or conduct, the question of maintenance of
public order will not arise. In the present case the
three prohibition cases registered against the detenu are
pending at the investigation stage. Considering the
statements of the witnesses, I am of the view that they
are vague and general and no reliance can be placed on
the same. In that view of the matter, I am of the view
that the subjective satisfaction arrived at by the
detaining authority is not genuine and, therefore, the
continued detention of the detenu is vitiated.
Mr.U.R.Bhatt, learned Assistant Government
Pleader, appearing for the respondents, however,
submitted that the fact that these cases have been
registered coupled with the fact that there are
statements of the witnesses in support thereof that the
detenu is engaged in manufacturing illicit liquor is
sufficient to hold that there is likelihood of breach of
public order. In the submission of Mr.Bhatt, with a view
to preventing this manufacturing activity of illicit
liquor, the detaining authority thought it necessary to
detain the detenu. In view of the decision of the
Supreme Court in Piyush Kantilal’s case ( supra) , it is
not possible for this Court to accept the submission of
Mr. Bhatt. Assuming that the allegation of the activity
of manufacturing illicit liquor by the detenu is true,
the same can , by no stretch of imagination, be construed
as causing breach of public order and, therefore, it
cannot be said that the subjective satisfaction arrived
at by the detaining authority for the purpose of passing
the order of detention was genuine. Therefore, the
continuous detention of the detenu is vitiated.
In the result, this petition is allowed. The
impugned order of detention dated 2-3-96 is quashed and
set aside. The detenu Amarsinh Chatursinh Chauhan is
directed to be set at liberty forthwith if his detention
is not required for any other purpose. Rule is made
absolute accordingly with no order as to costs.
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True copy