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SCA/4930/2007 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4930 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-
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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 ? 1
to 5 NO
=========================================================
UDESINGBHAI
SUKHIYABHAI PARMAR - Petitioner(s)
Versus
STATE
OF GUJARAT THRO.JOINT SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Petitioner(s) : 1,
MS MD MEHTA ASSTT GOVERNMENT PLEADER for
Respondent(s) :
1-3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 13/09/2007
ORAL
JUDGMENT
:
1. By
the present petition under Article 226 of the Constitution,
petitioner has sought the relief of order dated 27.01.2007 of his
detention being set aside. That impugned order dated 27.01.2007 is
issued by Police Commissioner, Vadodara in exercise of his powers
conferred under the provisions of section 3 of the Gujarat Prevention
of Anti-Social Activities Act, 1985 (“PASA” for short) on
the basis that the petitioner was found to be repeatedly indulging in
anti-social activity of bootlegging and an offence being III-C.R.No.6
of 2007 under the Prohibition Act was registered on 07.01.2007
against the petitioner in Jawaharnagar Police Station of Vadodara.
According to the grounds of detention supplied with the impugned
order, even as the aforesaid offence was being investigated, other
actions under the Prohibition Act were not possible and alcohol being
injurious to health, there was likelihood of danger to public health
on account of consumption of illicit liquor in which the petitioner
was dealing. It is further stated that possibility of the petitioner
continuing in anti-social activities could not be denied and hence it
was found to be necessary to detain the petitioner after considering
the documents and statements which were relied upon and supplied to
the petitioner.
2. Even
as the present petition was admitted on 22.02.2007 and Rule was made
returnable on 25.4.2007 and an affidavit-in-reply of the detaining
authority was ready and executed on 28.3.2007, it was submitted to
this court and copy thereof supplied to the petitioner only on
12.9.2007. It is stated in that affidavit, inter alia, that
prima facie involvement of the petitioner was established in
the offence registered against him. It is further stated: “I
say and submit that the petitioner is doing his bootlegging
activities in a sequence. I say and submit that the petitioner is
illegally storing and selling country made liquor. I say and submit
that the liquor is injurious to health and likely to create health
hazard in general public so as to disturb the public order and,
therefore, the petitioner has been detained under the provisions of
section 2 (b) of PASA as a bootlegger, therefore, order of detention
is legal, just and proper in the eye of law.”
3. In the above facts,
it was sought to be argued on behalf of the respondents that danger
to public health caused by the activity of bootlegging by the
petitioner substantiated the assumption of likelihood of public order
being adversely affected and, for that reason, the subjective
satisfaction about the necessity of preventing the petitioner from
acting in any manner prejudicial to the maintenance of public order
and the impugned order directing his detention were legal and
justified.
4. As
held by this court in Amarbhai Kanjibhai Nayak v. Commissioner
of Police, Ahmedabad City & Ors. [1993 (3) G.L.R. 2703]
and in Sohanlal Surajaram Visnoi v. State of Gujarat [2004
(2) G.L.R. 1051], solitary incident of violation of
prohibition law, normally, without anything more, would not be a
problem to the maintenance of public order and, for such solitary
incident, no person can be detained under the Act. It was also seen
from analysis of the provisions of sub-section (4) of section 3 and
the Explanation appended thereto that the presumption of likelihood
of public order being adversely affected could arise, if danger were
caused to life or public health, but such danger has to be grave or
widespread for the mandatory presumption of likelihood of public
order being adversely affected. In the facts of the present case,
nothing from the material on record could substantiate or justify the
presumption of grave or widespread danger to life or public health
and hence, the presumption of likelihood of public order being
adversely affected could not have been legally availed by the
detaining authority for the purpose of arriving at a subjective
satisfaction.
5. Therefore,
in the facts and circumstances, the impugned order dated 27.01.2007
of preventive detention is found and held to be unsustainable in law
and set aside with the direction that the petitioner shall be set at
liberty forthwith unless required to be detained in connection with
any other case. Rule is made absolute accordingly. Direct service
is permitted.
Sd/-
(
D.H.Waghela, J.)
(KMG
Thilake)
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