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SCA/12993/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12993 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
=========================================================
SURESH
MUNNASING SOLANKI
Versus
STATE
OF GUJARAT & OTHERS
=========================================================
Appearance
:
MS
KRISHNA U MISHRA for Petitioner.
MS JIRGA JHAVERI, ASST.
GOVERNMENT PLEADER for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 21/04/2010
ORAL
JUDGMENT
By
filing this writ petition under Article 227 of the Constitution of
India, the detenu has challenged the order of detention No.
PCB/DTN/PASA/633/2009 dated 07.10.2009 passed by the Commissioner of
Police, Ahmedabad respondent No. 2, in exercise of powers under
sub-section (1) of section 3 of the Gujarat Prevention of Anti Social
Activities Act, 1985 [hereinafter referred to as the PASA Act]
detaining the detenu as a bootlegger, as being illegal, invalid,
arbitrary, void ab-initio and suffers from total non-application of
mind and also in violation of the provisions of Articles 14, 21 and
22 of the Constitution of India.
Learned
advocate for the detenu, Ms. Krishna U. Mishra submitted that the
grounds of detention do not indicate any satisfaction recorded by the
detaining authority that the activities of the detenu are detrimental
to public order , and, therefore, the detention order is bad and
illegal. She submitted that the detaining authority has placed
reliance on two cases under the Prohibition Act but the same do not
indicate anything to support disturbance to public order . She
submitted that the last offence was registered on 07.07.2009, the
detenu was released on bail 15.09.2009 but the detention order is
passed on 07.10.2009. Learned advocate therefore submitted that there
is a delay in passing the order of detention and on this ground also,
the detention order requires to be quashed and set aside.
Ms.
Jirga Jhaveri, learned AGP submitted that the detention order is
just and proper and detaining authority has passed the order after
considering all relevant aspects of the matter, and the same needs no
interference.
Heard
learned counsel appearing for both the sides. I have also perused the
records available in the compilation.
It
appears that on the basis of two cases, viz. Prohibition C.R. No.
5206 of 2009 dated 16.06.2009 for 12 ltrs. of country liquor and
Prohibition C.R. No. 5230 of 2009 dated 06.06.2009 for 48 ltrs. of
country liquor both registered at Odhav Police Police Station
against the detenu, the detaining authority held that the said
activities of selling liquor of the present detenu were harmful to
the health of the public, and to restrain from carrying further
illegal activities, the detenu has been detained. It further appears
that the last offence was registered on 07.07.2009, the detenu was
released on bail 15.09.2009 but the detention order is passed on
07.10.2009, i.e. after 22 days. Hence there is a delay in passing the
order of detention. On this ground alone, this petition requires to
be allowed.
Another
submission of the learned advocate for the detenu is that the grounds
of detention do not indicate any satisfaction recorded by the
detaining authority that the activities of the detenu are detrimental
to public order and at the most it can be said to be breach of
law and 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 liquor which is harmful to the
health of the public.
In
the case of Collector and DIST. MAGISTRATE V/S. SULTAN reported
in AIR 2008 SC 2096 the Apex Court has distinguished between
public order and law and order and held that the
distinction between the areas of ‘law and order’ and ‘public order’
is one of the degree and extent of the reach of the act in question
on society which would disturb the even tempo of life of the
community and if the effect is confined only to a few individuals
directly involved as distinct from a wide spectrum of public, it
could raise problem of law and order only.
Applying
the ratio of the above decision, 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 . Even the quantity involved
are small, i.e only 12 ltrs. and 48 Ltrs. 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.
For
the foregoing reasons, the petition is allowed. The impugned order of
detention dated 07.10.2009 passed by the Police Commissioner,
Ahmedabad City respondent No.2 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.
mathew [
H.B. ANTANI, J.]
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