SCA/8157/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8157 of 2008 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 ? ========================================================= DEVRAJ ALIAS DINESH DEVJIBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS SUBHADRA G PATEL for Petitioner(s) : 1, MR AJ DESAI, AGP for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 27/06/2008 ORAL JUDGMENT
1. Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. The
petitioner-detenue has preferred this petition under Article 226 of
the Constitution of India, for appropriate writ, order or direction
for quashing and setting aside the impugned order dated 10.12.2007
passed by the respondent No.2-Commissioner of Police, Ahmedabad City,
in exercise of power under sub-section(2) of Section (3) of the
Gujarat Prevention of Anti Social Activities Act, 1985 (ýSPASA Actýý
for short) whereby the petitioner has been detained as a bootlegger.
In pursuance of the said impugned order, the petitioner is detained
in District Jail, Surat.
3. From
the grounds of detention, it appears that one offence being
Prohibition CR No.5052 of 2007 under the provisions of Sections 66B,
65AE and 81 under the Bombay Prohibition Act, was registered with
Ramol Police Station, wherein a quantity of total 68 bottles of
foreign liquor were found from the possession of the detenue. On the
basis of registration of this case, the detaining authority held that
the present detenue was carrying on activities of selling foreign
made liquor which is harmful to the health of the public. It is held
by the detaining authority that as the detenue 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 detenue can, by no stretch of imagination, be said to be
disturbing the ýSpublic order.ýý 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 ýSlaw
and orderýý and not ýSpublic orderýý. Therefore, on this ground,
the subjective satisfaction arrived at by the detaining authority is
vitiated on account of non-application of mind and the impugned
order, therefore, deserves to be quashed and set aside.
4. Except
the statements of some anonymous witnesses, there is no material on
record which shows that the petitioner-detenue is carrying on
activities of selling country made 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 passed on the basis
of the statements of the witnesses falls under the maintenance of
ýSlaw and orderýý and not ýSpublic orderýý.
5. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenue, the detaining authority must come
to a definite finding that there is threat to the ýSpublic orderýý
and it is very clear that the present would not fall within the
category of threat to ýSpublic orderýý. 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. I
am fortified by in my view by the decision taken by this Court in the
case of Sandip Omprakash Gupta v. State of Gujarat (2004)(1) GLR
865) that solitary incident of violation of prohibition law,
normally would not be a problem to the maintenance of public order
and for such solitary offence, no person can be detained under the
Act.
7. In
the result, this Special Civil
Application is allowed. The impugned order of detention passed by the
detaining authority is hereby quashed and set aside. The detenue is
ordered to be set at liberty forthwith, if not required in any other
case. Rule is made absolute accordingly. Direct service is permitted.
(M.D.Shah,
J.)
Sreeram.