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SCA/10290/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10290 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 ?
=========================================================
BALVANT
@ PRAKASH MANGALDAS NAI (VALAND) - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
HR PRAJAPATI for
Petitioner(s) : 1,
MR DR CHAUHAN, ASST.GOVERNMENT PLEADER for
Respondent(s) : 1, 3,
DS AFF.NOT FILED (R) for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 14/10/2008
ORAL
JUDGMENT
1. Heard
Mr. H.R.Prajapati for the petitioner and learned AGP Mr.D.R.Chauhan
for the respondents.
2. By
way of the the present petition, the petitioner-detenu has challenged
the legality and validity of the order of detention dated 25.3.2008
passed by the Police Commissioner, Vadodara City, in exercise of
powers under the provisions of the Gujarat Prevention of Anti-Social
Activities Act, 1985( for short ?Sthe Act??).
3. The
petitioner-detenu is branded as a ?Sbootlegger??
within the meaning of Sec.2 (b) of the Act as he was found involved
in offence under the Bombay Prohibition Act by engaging in the
transportation and illegal sale and distribution of prohibited
foreign liquor. While passing the order of detention the detaining
authority has mainly considered the fact of registration of a single
offence punishable under Sections 66B, 65AE, 81,of the Bombay
Prohibition Act registered as CR no.III-26/2008 and the statement of
the accused in the prohibition case.
4. The
learned Advocate for the petitioner-detenu has assailed the order
under challenge on various grounds. However,this petition is capable
of being disposed of on the sole ground as to whether there was
credible material placed before the detaining authority to come to
the conclusion that by the activities of the petitioner, public order
was disturbed or that public health was disturbed adversely.
5. To
reach to the subjective satisfaction that bootlegging activities of
the petitioner were prejudicial to the maintenance of public order
and public health, the detaining authority must rely upon credible
and cogent material that the activities of the petitioner directly or
indirectly were causing or were likely to cause any harm danger or
alarm or feeling of insecurity among the general public or any
section thereof or a grave or widespread danger to life, property or
the public health. While undertaking this exercise, the detaining
authority must draw a clear line between the cases falling within
breach of law and order and breach of public order.
6. The
facts of the present case are squarely covered by a decision of the
Apex Court in the matter of Darpan @ Dharban Kumar Sharma vs.
State of Tamil Nadu and Ors. (2003) 2 SCC 313 wherein while
dealing with solitary instance of robbery as ground for preventive
detention, the Apex Court observed that there is nothing on record to
show that the reach and potentiality of the incident was so grave as
to disturb the even tempo of life of the community in the locality or
disturb general peace and tranquility or create a sense of alarm and
insecurity in the locality. Solitary instance of robbery was held not
relevant for sustaining the order of detention and that such incident
could hardly be said to disturb public peace or public order in
jeopardy so as to bring the case within the purview of preventive
detention.
7. In
the present case, the detaining authority has taken into
consideration the investigation papers in solitary case registered
against the petitioner under the Bombay Prohibition Act. This case is
registered against the petitioner as he was found in possession of
344 bottles of prohibited foreign liquor and that he was engaged in
the business of transporting and selling foreign liquor in breach of
law for which the petitioner can be adequately punished if found
guilty. Surely,the act constituting the offence cannot be said to
have affected the even tempo of life of the community. It is
therefore difficult for this Court to accept that the petitioner has
been rightly detained as the activities of the petitioner can at the
most be termed as affecting law and order. In short, no further
discussion on the other points raised in this petition is required as
in the opinion of this Court, the order of detention is not
sustainable in the eye of law as the subjective satisfaction arrived
at by the detaining authority is not legal and valid. The order
under challenge is required to be quashed and set aside on this
ground alone.
8. In
the result, the petition is allowed. The impugned order of detention
dated 25.3.2008 passed by the Police Commissioner,Vadodara City, is
hereby quashed and set aside and detenu is hereby ordered to be set
at liberty forthwith, if not required to be detained in any other
case. Rule is made absolute. Direct service is permitted.
(M.D.Shah,J.)
sudhir
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