SCA/3093/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3093 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 ? ========================================================= ASHOK GANGDAS KANJIYA - Petitioner(s) Versus DISTRICT MAGISTRATE & 2 - Respondent(s) ========================================================= Appearance : MR PM LAKHANI for Petitioner(s) : 1,MRS RP LAKHANI for Petitioner(s) : 1,MR RI SHARMA for Petitioner(s) : 1, Mr Umang H Oza, Asstt.GOVERNMENT PLEADER for Respondent(s) : ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 16/06/2008 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 30.11.2007 passed by respondent
No.1-District Magistrate, Jamnagar, 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.
2. From the grounds of
detention, it appears that six offences being CR.I.Nos. 178, 1020,
142,143, 376 of 2006 and 286 of 2007 under sections 66 (1)b and 65(e)
etc. under the Bombay Prohibition Act, were registered with
Khambhaliya, Jamnagar City ‘A’, Lalpur, Okha and Bhanwad police
stations, wherein foreign liquor was found from the possession of the
detenu. On the basis of registration of these cases, the detaining
authority held that the present detenu was carrying on activities of
selling country 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 offences 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 order 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.
5. In the result, this Special
Civil Application is allowed. The impugned order of detention dated
30.11.2007 passed by the District Magistrate, Jamnagar 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