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SCA/12995/2009 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12995 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 ?
=========================================================
SANJAY
@ VIJAY S/O CHAMPAKLAL DUMASIYA
Versus
STATE
OF GUJARAT & OTHERS
=========================================================
Appearance :
MR
AR SHAIKH for Petitioner.
MS TRUSHA K PATEL, ASST. GOVERNMENT
PLEADER for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 29/03/2010
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/PASA/219/2009 dated 29.09.2009 passed by the Commissioner of
Police, Surat City, 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 21 and 22 of
the Constitution of India.
Learned
advocate for the detenu, Mr. A.R. Shaikh, 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. He further submitted that the detaining authority has placed
reliance on a solitary case under the Prohibition Act but the same do
not indicate anything to support disturbance to public order .
He further submitted that the offence was registered as back as
18.09.09, the detenu was arrested on the same date, he was released
on bail on 21.09.09, and the detention order was passed on
29.09.2009. 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. Learned
advocate further submitted that on behalf of the detenu, a
representation was submitted by registered AD Post on 17.11.2009, but
the same has not been considered by the respondents and on this
ground also, the continued detention of the detenu requires to be
quashed and set aside.
Ms.
Trusha Patel, 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 advocate Mr. Shaikh for the detenu and Ms. Trusha Patel,
learned AGP for the respondents. I have also perused the records.
It
appears that on the basis of a solitary case, viz. C.R. No. III – 861
of 2009 dated 18.09.2009 registered at Salabatpura Police Station for
744 bottles of foreign liquor 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 offence was registered on
18.09.2009, the detenu was released on bail on 21.09.09 and the
detention order was passed on 29.09.2009 almost 8 days after his
release. Hence there is a delay in passing the order of detention. No
affidavit is filed in this matter by any of the respondents. The
delay caused in passing the order of detention has thus remained
unexplained. On this ground alone, this petition requires to be
allowed.
On
behalf of the detenu, his lawyer made a representation on 17.11.2009
by registered AD Post. It is the detenu’s case that till filing of
the petition, he has not been replied and hence there is delay in
deciding his representation and on that ground alone, his detention
order requires to be quashed and set aside. No affidavit is filed by
any of the respondents in this matter explaining the situation. The
averments made in the petition has thus remain uncontroverted. It
thus appears that the representation made on behalf of the detenu has
not been considered at all by the concerned authorities. Thus, on the
ground of not considering the detenu’s representation alone, this
petition requires to be allowed.
Moreover,
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 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 as under in
paragraphs 22:
So
far as the cases against the detenu are concerned, they have already
been registered. They were against persons mentioned therein which
is stated in the grounds of detention by the detaining authority.
Regarding two statements having taken into account, the law laid down
by the Supreme Court in Ram Manohar Lohia v. State of Bihar, AIR 1966
SC 740 and reiterated from time to time including decisions referred
to by us hereinabove, the case falls under the maintenance of law
and order and not public order . The subjective satisfaction
arrived at by the detaining authority, therefore, cannot be said to
be legal, valid and in accordance with law. Since in the facts and
circumstances, an order of detention could have been passed by the
detaining authority for maintenance of public order , the order
deserves to be quashed and is hereby set aside.
In
the case of Collector and Dist. Magistrate v. S. Sultan reported in
AIR 2008 SUPREME COURT 2096 the Apex Court held as under:-
The
crucial issue, therefore, is whether the activities of the detenu
were prejudicial to public order. While the expression ‘law and
order’ is wider in scope inasmuch as contravention of law always
affects order. ‘Public order’ has a narrower ambit, and public order
could be affected by only such contravention which affects the
community or the public at large. Public order is the even tempo of
life of the community taking the country as a whole or even a
specified locality. 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. It is the potentiality of
the act to disturb the even tempo of life of the community which
makes it prejudicial to the maintenance of the public order. If a
contravention in its 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. It is the length,
magnitude and intensity of the terror wave unleashed by a particular
eruption of disorder that helps to distinguish it as an act affecting
‘public order’ from that concerning ‘law and order’. The question to
ask is : “Does it lead to disturbance of the current life of the
community so as to amount to a disturbance of the public order or
does it affect merely an individual leaving the tranquillity of the
society undisturbed” ? This question has to be faced in every
case on its facts.
13.
“Public order” is what the French call ‘ordre publique’ and
is something more than ordinary maintenance of law and order. The
test to be adopted in determining whether an act affects law and
order or public order, is : Does it lead to disturbance of the
current life of the community so as to amount to disturbance of the
public order or does it affect merely an individual leaving the
tranquillity of the society undisturbed ? (See Kanu Biswas v. State
of West Bengal (AIR 1972 SC 1656).
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 29.09.2009
passed by the Commissioner of Police, Surat 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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