SCA/3886/2008 5/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3886 of 2008 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 ? ========================================================= SURESH MANGALDAS HADIYAL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR MM TIRMIZI for Petitioner. Mr.A.J.Desai AGP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 18/06/2008 ORAL JUDGMENT
1.
Heard Mr.M.M.Tirmizi for the petitioner and learned A.G.P.
Mr.A.J.Desai for the respondents.
2.
By way of the the present petition, the petitioner-detenu has
challenged the legality and validity of the order of detention dated
28-11-2007 passed by the Police Commissioner, Ahmedabad City, in
exercise of powers under the provisions of the Gujarat Prevention of
Anti-Social Activities Act, 1985( for short ýSthe Actýý).
3.
The petitioner-detenu is branded as a ýS bootleggerýý within the
meaning of Sec.2 (b) of the Act as he was found involved in offences
under the Bombay Prohibition Act by engaging himself in the illegal
sale and distribution of country liquor. While passing the order of
detention the detaining authority has considered the fact of
registration of three cases ý CR no.5134/2006 dt.22-3-2006 , CR
no.5266/2007 dt.15-7-2007, CR no.5389/2007 dt.1-11-2007 all for the
offence punishable under Secs.66B, 65E, 66.1B and 81 of the Bombay
Prohibition Act and the statement of the accused in the prohibition
cases. He was found to be in possession of total 87 litres of country
liquor in the said offences.
4.
The learned Advocate for the petitioner-detenu has assailed the order
under challenge on various grounds as mentioned in the memo of
petition. However,this petition is capable of being disposed of on
the sole ground as to whether there was cogent and credible material
placed before the detaining authority to come to the conclusion that
by the activities of the petitioner, the public order was disturbed.
5.
To reach to the subjective satisfaction that the bottlegging
activities of the petitioner were prejudicial to the maintenance of
public order, the detaining authority must rely upon credible and
cogent material indicating that the activities of the detenu directly
or indirectly were causing or were likely to cause harm, danger or
alarm or feeling of insecurity among the general public or any
section thereof or a grave or widespread danger to life, property
etc. While undertaking this exercise, the detaining authority has to
draw a clear line between the cases falling within the category of
breach of law and order and the cases falling within the category of
breach of public order.
6.
In the present case, the three pending criminal cases registered
against the petitioner under the Prohibition Act and the activities
of the petitioner of engaging himself in the illegal sale and
distribution of country liquor can at the most be said to be
involving law and order problem for which the petitioner can be
adequately punished. It is therefore difficult for this Court to
accept that the petitioner has been rightly detained as the
activities of the petitioner can at the most be termed as affecting
law and order. In short, no further discussion on the other points
raised in this petition is required as in the opinion of this Court,
the order of detention is not sustainable in the eye of law. In this
context reference may be had to the decision rendered in the case of
Harpreet Kaur vs. State of Maharashtra, reported in 1992 SC 797,
wherein it has been held that involvement of the accused in fourteen
offences including lifting of gas cylinders cannot be said to be
prejudicial to the maintenance of public tranquility and the
authority was not justified in arriving at the subjective
satisfaction that the activities of the petitioner were likely to
affect the maintenance of public tranquility..ýý Similarly, in the
decision rendered in the case of Surajsinh alias Suru alias Suresh
Lallusinh Rajput, ( 2004(1) G.L.H.454) it has been held as under
at para 7 of the judgment:
ýS7……..In
order to bring the activities of a person within the expression of
acting in any manner prejudicial to the maintenance of public order,
the fall out and extent and reach of the alleged activities must be
of such a nature that they travel beyond the capacity of the
ordinary law to deal with him or to prevent his subversive
activities affecting the community at large or a large section of
society…..ýý
7.
In the result, the petition is allowed. The impugned order of
detention dated 28-11–2007 passed by the Police
Commissioner,Ahmedabad City,is hereby quashed and set aside and
detenu is hereby ordered to be set at liberty forthwith, if not
required to be detained in any other case. Rule is made absolute.
Direct service is permitted.
(M.D.Shah,J.)
lee.