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SCA/10821/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10821 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 ?
=========================================================
RAFIQ
MUSABHAI JAFARANI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MM TIRMIZI for
Petitioner(s) : 1,
MS MANISHA LAVKUMAR, AGP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 04/12/2009
ORAL
JUDGMENT
Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. 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 impugned order dated 3.8.2009
passed by the respondent No.2-Police Commissioner, Rajkot City, in
exercise of power under sub-section (2) of Section (3) of the Gujarat
Prevention of Anti Social Activities Act, 1985 ( PASA for short)
whereby the petitioner has been detained as a bootlegger . In
pursuance to the said impugned order, the petitioner is detained in
Godhra Jail.
3. From
the grounds of detention, it appears that three offences being
prohibition CR Nos. 83 of 2008, 118 of 2009 and 148 of 2009 have been
registered against the petitioner-detenu at Pradyumnanagar Police
Station, Rajkot City under the provisions of Sections 66(1)(B), 65AE,
116 and 81 of the Bombay Prohibition Act, wherein a a total quantity
of 179 bottles of different brands of foreign liquor were found from
the possession of the petitioner. On the basis of the registration
of these cases, the detaining authority held that the present detenu
was carrying on activities of selling 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 the detenu 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 imagination, 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 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-detenu 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 law and order and not public order .
5. 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 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, it cannot be sustained
and, therefore, it deserves to be quashed and set aside.
6. In
the result, this petition is allowed. The impugned order of detention
dated 3.8.2009 passed by the respondent NO.2-Police Commissioner,
Rajkot City is hereby quashed and set aside. The detenu is ordered to
be set at liberty forthwith, if his presence is not required in any
other offence. Rule is made absolute accordingly. D.S.is permitted.
(M.D.Shah, J.)
Sreeram.
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