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SCA/1249/2010 3/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1249 of 2010
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 ?
=========================================================
SIDDIKBHAI
HAIDARBHAI MIYANA
Versus
COMMISSIONER
OF POLICE & OTHERS
=========================================================
Appearance :
MS
JAYSHREE C BHATT for Petitioner.
MR DC SEJPAL, 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/DTN/PASA/630/2009 dated 05.10.2009 passed by the Police
Commissioner, 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
Articles 21 and 22 of the Constitution of India.
Learned
advocate for the detenu, Ms. Jayshree Bhatt, 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 further submitted that the detaining authority has
placed reliance on two offences registered against the detenu but the
same do not indicate anything to support disturbance to public
order . She further submitted that even otherwise, in the first
offence, the quantity involved is only 19 Ltrs. of country liquor and
in the second offence, the quantity is only 12 Lrs. of country liquor
and 90 Ltrs. of Wash. She, therefore, submitted that even looking to
the small quantity, the detention order deserves to be quashed and
set aside. She further submitted that the last offence was
registered against the detenu on 16.09.09 and in the said case, the
detenu was released on bail on 17.09.09 but the detention order is
passed on 05.10.2009. Hence there is delay in passing the order of
detention and therefore also, the detention order is liable to be
quashed and set aside.
Mr.
Sejpal, 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 Ms. Jayshree Bhatt for the detenu and Mr. Sejpal,
learned AGP for the respondents. I have also perused the records.
It
appears that on the basis of two cases, both registered at Madhavpura
Police Station, viz. Prohibition CR No. 5119/09 dated 29.05.2009 for
19 ltrs. of country liquor and Prohibition CR No. 5158/2009 dated
16.09.09 for 12 ltrs. of country liquor and 90 Ltrs. of Wash against
the detenu, the detaining authority held that the said activities of
selling country made 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
appears that the last offence was registered on 16.09.2009, the
detenu was released on bail on 17.09.09 and the detention order was
passed on 05.10.2009 almost 18 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.
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 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 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 . Even looking to the small
quantity, the detention order deserves to be quashed and set aside.
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 05.10.2009
passed by the Police Commissioner, 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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