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SCA/7225/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7225 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 ?
=========================================================
MANIBEN
AMBALAL NATHABHAI CHHARA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
NR KODEKAR for
Petitioner(s) : 1,MR
KASHYAP R KODEKAR for
Petitioner(s) : 1,
Ms.
Sandhya Natani, Asstt/GOVERNMENT
PLEADER for
Respondent(s)
:
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 17/07/2008
ORAL
JUDGMENT
1.
The petitioner-lady 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 12.12.2007 passed by respondent
No.2-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’) whereby 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.
2.
From the grounds of detention, it appears that one offence being
CR.I.No.5411 of 2007 under sections 66 (1)b and 65(e) etc. under the
Bombay Prohibition Act, was registered with Naroda police station,
wherein country liquor was 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 her 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 ?Slaw and
order?? and not ?Spublic order??.
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
12.12.2007 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
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