SCA/8524/2008 2/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8524 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 ? ========================================================= SHIVPALSINH ATARSINH TOMAR THRO BROTHER-RAMESHSINH ATRA- - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR BHUNESH C RUPERA for Petitioner(s) : 1, Mr Vinay Pandya, asstt.GOVERNMENT PLEADER for Respondent(s) : ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 13/08/2008 ORAL JUDGMENT
1. 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 order dated 26.2.2008 passed by
the Commissioner of Police, Ahmedabad, whereby, in exercise of power
under sub-section (2) of section 3 of the Gujarat Prevention of Anti
Social Activities Act, 1985 (for short, ‘PASA Act’) the petitioner
has been detained as a bootlegger. In pursuance of the said impugned
order, the petitioner is detained in jail.
Heard the learned advocate
for the petitioner and the learned AGP for the respondents. It is
found from the order that as the detenu was not released by the lower
court, order dated 26.2.2008 was executed on him and thus, the actual
date of detention is 20.3.2008. It is submitted by the learned
advocate for the petitioner that the detenu was released on bail by
this court vide order dated 19.3.2008 and so also the detenu was in
judicial custody from 26.2.2008 to 19.3.2008.
2. From the grounds of
detention, it appears that one offence being CR.I.No.5069 of 2008
under sections 66 (1)b and 65(e) etc. under the Bombay Prohibition
Act, was registered with Naroda police station, wherein Indian made
foreign liquor and beer tins and a four wheeler were found from the
possession of the detenu. On the basis of registration of this
case, the detaining authority held that the present detenu was
carrying 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
him from carrying out further illegal activities i.e. selling of
liquor. The detaining authority has placed reliance on the above
registered offence and statements of unnamed witnesses. In the
opinion of this court, the activities of the detenu can, by no
stretch of reasoning, 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 of
the detaining authority is vitiated on account of non-application of
mind and the impugned order, therefore, deserves to be quashed and
set aside.
3. Except two statements of
the anonymous witnesses, there is no material on record which shows
that the petitioner-detenu is carrying out illegal 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 orders are passed on the basis
of the statements of such witnesses fall under the maintenance of
ýSlaw and orderýý and not ýSpublic orderýý.
4. 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 a 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. No affidavit-in-reply is filed by the learned AGP on behalf
of the respondent-detaining authority controverting the averments
made in the petition.
5. I am fortified in my view
by the decision taken by this court in the case of Sandip
Omprakash Gupta v. State of Gujarat (2004 (1) GLR 865) that
solitary incident of violation of prohibition law, normally would not
be a problem to the maintenance of public order and for such solitary
offence, no person can be detained under the Act.
6. In the result, this Special
Civil Application is allowed. The impugned order of detention dated
26.2.2008 passed by the Commissioner of Police, Ahmedabad 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.]
msp