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SCA/1298/2010 3/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1298 of 2010
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 ?
=========================================================
SANGITABEN
@ BHARTIBEN WD/O RAJUBHAI GIRDHARBHAI PATIL - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AR SHAIKH for
Petitioner(s) : 1,
MR PRANAV TRIVEDI, AGP for Respondent(s) :
3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 12/05/2010
ORAL
JUDGMENT
1. Leave
to amend. Heard learned advocate for the petitioner and 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 7.1.2010
passed by the respondent No.2-Commissioner of Police, Surat City in
exercise of power under sub-section (1) of Section 3 of the Gujarat
Prevention of Anti Social Activities Act, 1985 ( PASA Act for
short) whereby the petitioner has been detained as a bootlegger .
In pursuance of the said impugned order, the petitioner is detained
in Vadodara jail on 9.1.2010.
3. Along
with the detention order, the petitioner detenue has been supplied
with the grounds of detention. From the grounds of detention, it
appears that two offences being III CR Nos.921 of 2009 and 1062 of
2009 have been registered against the detenue. Both the offences
have been registered with Limbayat Police Station under the
provisions of Sections 66(1)B, 65EA, 81, 116(1)B and 99 of the
Bombay Prohibition Act, wherein total quantity of 516 bottles of
foreign liquor was found from the possession of the detenue. On the
basis of registration of these cases, the detaining authority held
that the present detenue 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 detenue is indulged in illegal
activities, it is required to restrain the detenue 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 public order. It is seen from the grounds
of detention 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-detenue is carrying on
activities of selling 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 detenue, 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 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,
cannot be sustained and, therefore, it deserves to be quashed and set
aside.
6. The
petition is allowed. The impugned order of detention dated 7.1.2010
passed against the detenu is hereby 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.
(M.D.Shah,
J.)
pathan
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