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SCA/11997/2009 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11997 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
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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 ?
=========================================================
VASANTIBEN
@ BASANTI W/O MAHESHBHAI SHRIRAM NAT
Versus
COMMISSIONER
OF POLICE & OTHERS
=========================================================
Appearance :
MS
BANNA S DUTTA for Petitioners.
MS MINI NAIR, ASST. GOVERNMENT
PLEADER for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 07/05/2010
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/659/2009 dated 22.10.2009 passed by the Commissioner of
Police, Ahmedabad City, respondent No.1, 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 the Constitution of
India.
Learned
advocate for the detenu, Ms. Banna Datta 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 four 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 27.09.2009, the
detenu was arrested on 27.09.2009, and the detenu was released on
bail 28.09.2009 but the detention order is passed on 22.10.2009.
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.
Mini Nair, 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 four cases, all registered at
Naranpura Police Station, viz. Prohibition CR No. 5179 of 2008 dated
16.10.2008 for 3 Ltrs. of country liquor, Prohibition CR No. 5079 of
2009 dated 31.03.2009 for 5 Ltrs. of country liquor, Prohibition CR
No. 5171 of 2009 dated 12.06.2009 for 7 Ltrs. of country liquor and
Prohibition CR No. 5236 of 2009 dated 27.09.2009 for 32 Ltrs. of
country liquor registered 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
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 .
It is
the contention of learned advocate for the detenu that the detaining
authority has placed reliance on four cases registered against the
detenu and the last offence was registered on 27.09.2009, the detenu
was arrested on 27.09.2009, and the detenu was released on bail
28.09.2009 but the detention order is passed on 22.10.2009. Hence
there is delay of almost 24 days in passing the order of detention.
The delay caused in passing and execution of the order of detention
is not satisfactorily explained. Hence, I am of the view that on the
ground of delay caused in passing the order of detention itself, this
petition requires to be allowed.
That
apart, 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
is small. 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 22.10.2009 passed by the Commissioner of Police,
Ahmedabad City, respondent No.1 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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