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SCA/3481/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3481 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 ?
=========================================
VAJUBHAI
MAGANBHAI PARMAR THRO' BHARAT VAJUBHAI PARMAR
Versus
STATE
OF GUJARAT & ORS
=========================================
Appearance :
MS
SUBHADRA G PATEL for Petitioner
MS TK PATEL
AGP for Respondents
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 12/05/2009
ORAL
JUDGMENT
1 By
filing the present petition under Article 226 of the Constitution of
India, the detenu has prayed to quash and set aside the order of
detention dated 18.12.2008 passed by the respondent No.2-Police
Commissioner, Rajkot City, 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 ) branding the detenu as a
Bootlegger . In pursuance to the said order, the detenu has been
detained in Nadiad Jail.
2. Heard
the learned advocate for the detenu and learned AGP Ms T.K. Patel for
the respondents. No affidavit in reply is filed by the respondents
controverting the averments made on behalf of the detenu.
3. The
detenu came to be detained as Bootlegger in connection with one
offence being CR No.182 of 2008 registered with Gandhigram Police
Station, Rajkot City for the offences punishable under the provisions
of the Bombay Prohibition Act.
4. The
learned advocate for the detenu has submitted that it is a settled
legal position that on registration of single solitary offence, no
order of detention could have been passed branding the detenu as a
Bootlegger . He has further submitted that the activities of the
detenu cannot be said to be injurious to the public health or
public order . Further is submitted by the learned advocate
that there is gross delay in passing the order of detention and there
is gross delay in executing the order.
5. I
have gone through the grounds of detention and considered the
arguments advanced by the learned advocate for the detenu as well as
the learned AGP. In the opinion of this Court, there is much
substance in the arguments advanced by the learned advocate for the
detenu. It is seen from the grounds that a general statement 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
arrived at by the detaining authority is vitiated on account of
non-application of mind and therefore, the impugned order is required
to be quashed and set aside.
6. Except
general statements of some witnesses, there is no material on record
which shows that the detenu is carrying out illegal activities which
is harmful to the health of the public. In the case of ASHOKBHAI
JIVRAJ @ JIVABHAI SOLANKI vs. POLICE COMMISSIONER, SURAT, reported in
2001(1) GLH 393, having considered the decision of the
Hon’ble Apex Court in the case of RAM MANOHAR LOHIA vs. STATE
OF BIHAR, reported in AIR 1966 SC 740, this Court has held
that the cases wherein the detention orders are passed on the basis
of the statements of such witness falls under the maintenance of law
and order and not ‘Public order’.
7. Applying
the ration of the above decisions, it is clear that before passing an
order of detention, 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.
8. In
the result, this Special Civil Application is allowed. The impugned
order of detention dated 18.12.2008 passed by the detaining
authority, i.e. respondent No.2- Police Commissioner, Rajkot City is
hereby quashed and set aside. The detenu is ordered to be set at
liberty forthwith, if his presence is not required in any other case.
Rule is made absolute accordingly. Direct service is permitted.
(M.D.
SHAH, J.)
pnnair
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