Gujarat High Court Case Information System
Print
SCA/1690/2010 1/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1690 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
=========================================================
KRUNAL
VADILAL CHIMANLAL THAKKAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
HR PRAJAPATI for
Petitioner(s) : 1,
MS JIRGA ZAVERI ASST. GOVERNMENT PLEADER for
Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 11/05/2010
ORAL
JUDGMENT
1. This
petition has been filed under Article 226 read with Articles 21 and
22(5) of the Constitution of India, with a prayer to quash and set
aside order of detention dated 28.08.2009
passed by the
Commissioner
of Police, Ahmedabad, in
exercise of powers under the provisions of the Gujarat Prevention of
Anti-Social Activities Act, 1985 ( the Act for short).
2. The
detenu has been branded as a ‘bootlegger’, within the meaning of
Section 2(b) of the Act, as he has been found to be involved in
offences under the Bombay Prohibition Act.
3. While
passing the order of detention, which was executed on 13.12.2009, the
detaining authority has taken into consideration that two
offences under the Bombay Prohibition Act have
been registered against the detenu and that the
activities carried on by him are detrimental to the maintenance of
public order, and prejudicial to public health.
4. I
have heard Mr.
H.R. Prajapati, learned counsel for the petitioner, Ms.
Jirga Zaveri, learned Assistant Government Pleader, and
perused the averments made in the petition and documents on record.
5. It
is submitted by the learned counsel for the petitioner that merely by
registration of offences
under the Bombay Prohibition Act, it cannot be said
that public order has been disturbed by the detenu. Moreover,
no statements of witnesses to substantiate these allegations have
been recorded by the detaining authority
so as to arrive
at a subjective satisfaction that the activities of the detenu are
detrimental to public order and prejudicial to public health,
therefore, the petition may be allowed.
6. The
learned Assistant Government Pleader has supported the order of
detention and prayed for dismissal of the petition.
7. Having
heard the learned counsel for the respective parties and having
perused the averments made in the petition as well as the contents of
the impugned order, and other documents on record, in the considered
view of this Court, in order to arrive at a subjective satisfaction
that the activities alleged to be carried on by the detenu, namely
`bootlegging’, are prejudicial to the maintenance of public order and
prejudicial to public health, the detaining authority must rely upon
cogent and credible evidence, and material on record. It must be
taken into consideration by the detaining authority that the
activities of the detenu, either directly or indirectly, are likely
to cause harm, danger or alarm, or feeling of insecurity among the
general public or a grave danger to life, property or public health.
While undertaking this exercise, the detaining authority must draw a
clear line between cases falling within the category of breach of law
and order, and breach of public order. In the present case, the said
exercise does not seem to have been done by the detaining authority,
as there is nothing on record to suggest that the activities of the
detenu have given rise to a feeling of alarm in the public or posed a
grave danger to public order or public health. It cannot be said that
merely by registration of offences
under the Bombay Prohibition Act, the activities of the
detenu are causing insecurity, and fear among the general public or
are detrimental to public health or maintenance of public order.
8. The
Supreme Court, in Darpan
@ Dharban Kumar Sharma v. State of Tamil Nadu and Ors. (2003)2
SCC 313 has laid down that there should be material on record to show
that the incidence and activities of the detenu are so grave as to
disturb the even tempo of life of the community in the locality, or
disturb the general peace and tranquility, or create a sense of alarm
and insecurity in the locality.
9. Having perused the
contents of the impugned order of detention and the documents annexed
to the petition, there is no material on record to indicate that the
activities of the detenu fall in this category. The registration of
prohibition cases by itself cannot be considered to be a breach of
public order, and nor is there any material on record to show that
the same has adversely affected the maintenance of public order.
10. In view of the
above, the petition is allowed. The impugned order of detention dated
28.08.2009 passed by the Commissioner of Police, Ahmedabad, 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
accordingly. Direct Service is permitted.
(SMT.
ABHILASHA KUMARI, J.)
Umesh/
Top