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SCA/8190/2008 7/ 9 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8190 of 2008
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 ?
==========================================
HARSUKH
@ VEERO HIRABHAI MALMADI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR
SIKANDER SAIYED for Petitioner(s) : 1,
MR
HEMANT MAKWANA, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1,
3,
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 26/09/2008
ORAL
JUDGMENT
This
petition under Article 226 of the Constitution of India is directed
against the order of preventive detention dated 13th
March, 2008 made by the District Magistrate, Junagadh in exercise of
powers under sub-section (2) of Section 3 of the Gujarat Prevention
of Anti-Social Activities Act, 1985 (the PASA Act) ordering that the
petitioner be detained to prevent him from acting in a manner
prejudicial to the maintenance of public health and public order.
The order was executed on the same day. The petitioner is thus
detained under the Act since 13th March, 2008.
Rule
was issued on the petition on 17th June, 2008, however,
neither the detaining authority nor the State Government, have filed
any counter to the petition.
Heard
Mr.Sikandar Saiyed, learned advocate for the petitioner and
Mr.Hemant Makwana, learned Assistant Government Pleader for the
respondents.
The
impugned order is challenged on many grounds; however, the core
ground is that there is no material on record for the detaining
authority to arrive at the subjective satisfaction that the
petitioner was acting in a manner prejudicial to the maintenance of
public order. It is submitted that the detaining authority has
proceeded on assumption and presumption by presuming that the
activities of selling liquor per se amounts to activities which are
prejudicial to the maintenance of public health and public health.
In
the impugned detention order the detaining authority has recorded
that the petitioner has formed a gang consisting of three four
persons and that he along with his gang was importing foreign liquor
on a large scale and selling the same in Veraval and other
neighbouring areas. The detaining authority has thereafter referred
to the solitary offence registered against the petitioner on and
15.2.08 under sections 66(b), 65(a)(e) and 116(2)(b) of the Bombay
Prohibition Act, 1949. The detaining authority has thereafter
recorded that the statement of the petitioner had been recorded in
connection with the said offence wherein he had stated that he had
obtained foreign liquor from one Naranbhai Kataria and had stored
the same in his yard. Out of the said stock he had sold 6 crates to
one Meghji Kharva which had been seized during the raid made by the
police. That he had secretly sold the rest of the stock in
piecemeal. That on the basis of the aforesaid facts it is proved
that the petitioner is importing and selling foreign liquor on a
large scale. It is further observed that the petitioner is carrying
on the unlawful activity of selling foreign liquor and had made it
his main business and his main source of income. It is further
observed that on the basis of the offences registered against the
petitioner, it is apparent that the petitioner was flagrantly
indulging in the illegal activity of importing foreign liquor and
selling the same, thereby, committing offences punishable under the
Bombay Prohibition Act, 1949. That in connection with the said
offences, the petitioner has been granted bail and there is all
possibility that the petitioner would carry on his unlawful
activities. That in view of the unlawful activities involving
liquor, the youth of the community and the poor, illiterate rural
public get addicted to consuming liquor and are pushed towards
economic and physical ruin. That on account of liquor there are
hooch tragedies. After consuming liquor, people lose control over
their senses and harass the public due to which the public order is
affected. Thus, his illegal activities of selling liquor are
hindrances to the public as well as to the maintenance of public
order. That in connection with the offences registered against him,
he has been enlarged on bail. It would take considerable time to get
the bail cancelled. That while on bail, the petitioner by continuing
to carry on his illegal activity of hoarding liquor and selling the
same was an obstacle to the maintenance of public order. The
detaining authority has thereafter expressed the view that taking
steps to obtain a bond from the petitioner under section 93 of the
Prohibition Act was not sufficient and it would take time to take
action to extern him. Thus, with a view to immediately prevent his
antisocial activities as well as activities which are in the nature
of obstacles to the maintenance of public order it does not appear
appropriate to take action for detaining him under any other law.
The
detaining authority has also recorded that when the petitioner was
arrested in connection with the aforesaid offence; he had admitted
that he the liquor that was seized belong to him and that it was
part of the 185 crates, and that only six crates were seized,
whereas the rest were piecemeal sold by the petitioner. Thus he was
satisfied that the petitioner was bringing foreign liquor in large
quantities from other States and was hoarding and selling the same
and was giving cooperation to persons carrying on similar unlawful
activities. That as his aforesaid activities were obstacles in the
maintenance of public order, it was necessary to detain the
petitioner as it was not possible to immediately prevent him from
carrying on his illegal activities under any other law, hence as a
last resort he was being detained in exercise of powers under
section 3(1) of the PASA Act as a ??bootlegger?” under section
2(b) of the said Act. On the aforesaid facts, the detaining
authority has arrived at the subjective satisfaction that the
petitioner is a bootlegger as defined under section 2(b) of the PASA
Act and that his activities are prejudicial to the maintenance of
public health and public order.
This
Court has perused the record of the case and has considered the
submissions advanced by the learned Advocates for the parties. A
perusal of the impugned order of detention and the record of the
case shows that there is absolutely no material on record on the
basis of which the detaining authority could have arrived at the
finding that the activities of the petitioner are prejudicial to the
maintenance of public health and public order. Though findings are
recorded that the petitioner is carrying on large scale activities
of selling liquor which has an adverse effect on the community,
there is no material on record to back such findings. The impugned
order of detention is based upon assumptions and presumptions
inasmuch as, the detaining authority has assumed that per se the
activities of the petitioner would be injurious to the public health
and public order. If the reason adopted by the detaining authority
is taken to its logical end, it would amount to stating that in
other States where there is no prohibition policy, the State itself
is permitting citizens to carry on activities which are prejudicial
to the maintenance of public order and public health. Such a
construction, therefore, is illogical and not in consonance with the
intention of the legislature, while framing the PASA Act.
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:
?SThe
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.??
A
Division Bench of this Court vide judgement 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:
?SThus,
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.??
In
the facts of the present case, as noted hereinabove, the only
material against the petitioner is the two criminal cases registered
against the petitioner, which by itself cannot be said to be a
material for the purpose of holding that the activities of the
petitioner had become a threat to the public order and public
health. The offences registered against the petitioner cannot be
said to have created any feeling of insecurity or panic or terror
amount the members of the public in the area in question giving rise
to the question of maintenance of public order. As regards,
maintenance of public health, mere sale of liquor cannot be said to
be prejudicial to the maintenance of public health, unless there is
specific material on record to show that the liquor was not fit for
human consumption or was otherwise injurious to health. According to
the detaining authority, per se, the activity of bootlegging
is prejudicial to the maintenance of public health and public order,
which is contrary to the law laid down by the Supreme Court in the
decision cited hereinabove. In the circumstances, the subjective
satisfaction recorded by the detaining authority being based on no
material stands vitiated and as such the impugned order of detention
cannot be sustained.
For
the foregoing reasons, the petition succeeds and is accordingly
allowed. The impugned order of detention dated 13th
March, 2008 made by the District Magistrate, Junagadh, is hereby
quashed and set aside and the detenu ? Shri Hasmukh alias Viro
Hirabhai Malmadi, 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.]
parmar*
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