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SCA/10779/2009 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10779 of 2009
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 ?
=========================================================
GEETABEN
W/O. RAJU @ BIHAREE SURENDRASING THAKUR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MR PRAJAPATI for
Petitioner(s) : 1,
MS SHACHI MATHUR, AGP for Respondent(s) :
1-3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 22/02/2010
ORAL
JUDGMENT
The
detenu has been detained under the provisions of Gujarat
Prevention of Anti-Social Activities Act, 1985 (hereinafter referred
to as `the Act of 1985′) by the order dated 22-9-2009 passed by
the Police Commissioner, Surat City, and detenu has been declared as
bootlegger.
Heard
learned advocate for the petitioner and the learned AGP for the
State. Also perused the record.
It
appears that a solitary offence being Puna Police Station III.Crime
Register No.341 of 2009 dated 1-9-2009 under the prohibition Act has
been registered against the detenue alleging that 4700 bottles of
country made liquor of different brands weighing 180 mm worth
Rs.1,41,000/- and other articles were found from the possession of
the detenu. On the basis of registration of the said solitary case,
the detaining authority held that since the said activities of
selling country made liquor of the present detenu were harmful to
the health of the public, to restrain from carrying further illegal
activities, the detenu has been detained. It appears from the order
that the activities of the detenu cannot be said to be disturbing
the public order . It also appears from the order passed by
the detaining authority that grounds which are mentioned in the
order are in reference to the situation of law and order and
not public order .
Except
the statements of some anonymous witnesses, there is no material on
record which shows that the 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 case wherein the detention order passed on the basis
of the statements of the witnesses fall under the maintenance of
law and order and not public order .
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 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, it cannot be sustained and, therefore, it deserves to be
quashed and set aside.
The
petition is allowed. The impugned order of detention dated 22-9-2009
passed by the Police Commissioner, Surat City, against the detenu
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.)
radhan
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