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SCA/2504/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2504 of 2009
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
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 ?
=========================================
LALABHAI
MAFABHAI RABARI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================
Appearance
:
MS KRISHNA U MISHRA for the
Petitioner.
Mr. K.L.Pandya, Assistant GOVERNMENT PLEADER for the
Respondents.
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 06/08/2009
ORAL
JUDGMENT
1.
This petition under Article 226 of the Constitution of India is
directed against the order of preventive detention dated 5th March,
2009 made by the Police Commissioner, Ahmedabad City in exercise of
powers under sub- section (2) of section 3 of the Gujarat Prevention
of Anti-Social Activities Act, 1985, whereby the petitioner has been
detained as a bootlegger.
2.
Ms. K.U.Mishra, learned advocate for the petitioner has submitted
that the activities of the petitioner, can, at the most, become to be
activities falling within the ambit of public order.
3.
The learned advocate for the petitioner has submitted that the
impugned order of detention is based solely upon three cases
registered against the petitioner under the provisions of the Bombay
Prohibition Act registered on 5th August, 2007, 12th July, 2007 and
12th February, 2009. It is submitted that the mere registration of
offences under the provisions of the Bombay Prohibition Act would not
bring the petitioner within the purview of the definition of section
2(b) of the PASA Act. It is further submitted that illegal activities
alleged to have been carried out by the petitioner cannot be said to
have any nexus or bearing with maintenance of the public health and
order and at the most, can be said to be a breach of law and order.
It is also pointed out that except for the statements of witnesses,
registration of FIR and panchnama, no other relevant or cogent
material is available on record connecting the alleged anti-social
activities of the petitioner with breach of public order. Reliance is
placed upon the decision of the Apex Court in case of K.K.Saravana
Babu vs. State of Tamil Nadu and another, reported in (2008) 9
Supreme Court Cases 89. Reliance is also placed on the decision of
this Court in case of Premnath Mohanlal Rajput (Advocate) vs. State
of Gujarat, reported in 2006 Criminal Law Journal,1183 as well as an
unreported decision of this Court in Jigar @ Lalo Pravinbhai Purani
vs. State of Gujarat through Deputy Secretary rendered in Special
Civil Application No. 411 of 2009 on 12.2.2009. It is submitted that
the present case is squarely covered by the law lid down in the
aforesaid decision.
4.
Mr. K.L.Pandya, learned Assistant Government Pleader appearing for
the respondent State authorities has supported the impugned order of
detention. It is submitted that the detaining authority has
considered the material on record and has arrived at a subjective
satisfaction that the petitioner is a bootlegger within the meaning
of section 2(b) of the PASA Act. Reliance is placed on the decision
of this Court in Keshubhai Madiyabhai Katara vs. Commissioner of
Police of the City of Ahmedabad, reported in 2007(3) GLH 233 and more
particularly the contents of paragraph 7 thereof to contend that it
is to be necessarily deemed that public order was likely to be
adversely affected due to alleged activities of the petitioner. It is
mainly submitted that no case is made out so as to warrant any
intervention by this Court.
5.
A perusal of the impugned order of detention indicates that except
for general statements to the effect that the activities of the
petitioner are prejudicial to the maintenance of public order and
that the activities of the petitioner have created fear amongst
public at large, there is no material on record to show that the
activities of the petitioner are, in any manner, prejudicial to the
maintenance of public order. The activities of the petitioner cannot
be said to be prejudicial to the maintenance of public order and at
the most, would fall within the ambit of maintenance of public order.
In the circumstances, subjective satisfaction of the detaining
authority being based on no material stands vitiated, hence, the
impugned order of detention cannot be sustained.
6.
It is settled legal position as held by the Supreme Court in the case
of Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad
City and another, 1989 Supp (1) SCC 322 that in order that an
activity may be said to affect adversely the maintenance of public
order, there must be material to show that there has been a feeling
of insecurity among the general public. If an act of a person creates
panic or fear in the minds of the members of the public upsetting the
even tempo of life of the community, such act must be said to have a
direct bearing on the question of maintenance of public order. The
commission of an offence will not necessarily come within the purview
of public order . On the facts of the said case the petitioner
therein was detained on the ground that he was a bootlegger and that
some incidents of beating by the petitioner had taken place, as
alleged by witnesses. According to the Supreme Court the said
incidents did not have any bearing on the maintenance of public
order. It was further held that:
The petitioner
may be punished for the alleged offences committed by him but,
surely, such acts constituting the offences cannot be said to have
affected the even tempo of life of the community. It may be that the
petitioner is a bootlegger within the meaning of Section 2(b) of the
Act, but merely because he is a bootlegger he cannot be preventively
detained under the provisions of the Act unless, as laid down in
sub-section (4) of section 3 of the Act, his activities as bootlegger
affect or are likely to affect adversely the maintenance of public
order. We have carefully considered the offences alleged against the
petitioner in the order of detention and also the allegations made by
the witnesses and, in our opinion,
these offences or the allegations cannot be said to have created any
feeling of insecurity or panic or terror among the members of the
public of the area in question giving rise to the question of
maintenance of public order. The order of detention cannot,
therefore, be upheld.
7.
A Division Bench of this Court vide judgment and order dated 22nd
August, 2000 rendered in the case of Ashokbhai Balabhai Makwana
v. State of Gujarat, Letters Patent Appeal No.223 of 2000,
after considering the decision of the Supreme Court in the case of
Kanuji S. Zala v. State of Gujarat, 1999 (2) GLH 415
held that a bald observation that the activities of the petitioner
were an obstacle to public health and public order cannot be taken to
be decisive so as to arrive at the satisfaction that the activities
of the petitioner were prejudicial to the public order or public
health and that tempo of public life was disturbed. The Court further
held that the litmus test to find out whether it is a case of breach
of public order or breach of public health is that credible material
has to be there. In the facts of the said case, apart from the
allegation that the petitioner was a bootlegger based on some
registered cases, there were some unregistered cases and statements
of anonymous witnesses against the petitioner therein. The Court held
thus:
Thus, the only
material which remains is the registered criminal cases and that by
itself cannot be said to be a material for the purpose of holding
that the appellant’s activities had become a threat to the public
order and public health. Necessary material in this regard is totally
wanting in the body of the detention order itself. In large number of
cases, the Supreme Court has considered that involvement in
bootlegging activities even if coupled
with violence does not amount to threat to public order or public
health. The mere mention of allegations unless they are supported by
any material cannot be said to be material germane for the purpose of
arriving at the satisfaction with regard to breach of public order or
public health.
8.
On the facts of the present case a perusal of the detention order
shows that after giving the particulars of the criminal cases, the
detaining authority has simply observed that the petitioner s
activities were an obstacle to the public health and public order
without there being any credible material in support thereof. Thus,
there is no material on record except the four cases registered
against the petitioner under the provisions of the Bombay Prohibition
Act. As held by the Supreme Court as well as this Court in the
decisions cited hereinabove, mere registration of criminal cases
cannot by itself be said to be a material for holding that the
petitioner s activities have become a threat to public order or
public health.
9.
The decision of this court in case of Salam Abdul Hanifshaibhai
Through Wife Hajirabibi Salam vs. (The) District Magistrate and Ors.
[2007 (3) G.L.H. Page 131] on which reliance has been placed
by the learned Assistant Government Pleader will not be of any
assistance to him as in the facts of the said case, it was found that
the detaining authority had arrived at the satisfaction that the
petitioner therein was a bootlegger and his activities were
prejudicial to the maintenance of public order as well as about the
likelihood of his activities causing widespread danger to the public
health by the scale of his operations which were all substantiated by
credible and cogent material. In the present case, there is nothing
to show that the activities of the petitioner were carried out on a
large scale nor is there any credible or cogent material to
substantiate the satisfaction arrived at by the detaining authority
that the activities of the petitioner are prejudicial to the
maintenance of public order or public health. In the circumstances,
the subjective satisfaction recorded by the detaining authority being
based on no evidence, stands vitiated and as such the order of
detention cannot be sustained.
10.
For the foregoing reasons, the petition succeeds and is accordingly
allowed. The impugned order of detention dated 5th March, 2009 passed
by the Police Commissioner, Ahmedabad City is hereby quashed and set
aside and the detenu Lalabhai Mafabhai Rabari 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.
(HARSHA
DEVANI, J.)
***darji
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