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SCA/4923/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4923 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 ?
=========================================================
GALIBEN
W/O NARANBHAI GOVIND- BHAI MARWADI - Petitioner(s)
Versus
POLICE
COMMISSIONER- AHMEDABADCITY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Petitioner(s) : 1,
MR UR BHATT, AGP for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 18/07/2008
ORAL
JUDGMENT
1. Heard
the learned advocate for the petitioner and the 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 3.12.2007
passed by the respondent No.1-Commissioner of Police, Ahmedabad City,
in exercise of power under sub-section(2) of Section (3) of the
Gujarat Prevention of Anti Social Activities Act, 1985 (?SPASA Act??
for short) whereby the petitioner has been detained as a
?Sbootlegger??. In pursuance of the said impugned order, the
petitioner is detained in Sub-Jail, Palanpur.
3. From
the grounds of detention, it appears that four offences being
Prohibition CR Nos.5118 of 2004; 5038 of 2006; 5061 of 2007 and 5123
of 2007 have been registered against the detenue under the provisions
of Sections 66B, 65E, and 81 of the Bombay Prohibition Act, were
registered. The first two offences have been registered at
Ellisbridge Police Station and in all, a quantity of 140 ltrs. of
country made 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
country made 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 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 ?Spublic 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 ?Slaw and order?? and not ?Spublic
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
?Slaw and order?? and not ?Spublic 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 ?Spublic order??
and it is very clear that the present would not fall within the
category of threat to ?Spublic 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. In
the result, this Special Civil
Application is allowed. The impugned order of detention dated
3.12.2007 passed by the detaining authority is hereby quashed and
set aside. The detenue 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.)
Sreeram.
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