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SCA/171520/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1715 of 2009
=========================================================
DAYALBHAI
PREMAJI ODE - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MS
BANNA S DUTTA for
Petitioner(s) : 1,
Mr H K Patel, Asstt.GOVERNMENT PLEADER for
Respondent(s) :
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 20/03/2009
ORAL
ORDER
1. Heard
learned counsel appearing for the parties.
This
petition is directed against the order of detention dated 4.11.2008
passed by respondent No. 1 in exercise of powers conferred
under Section 3(2) of the Gujarat Prevention of Anti Social
Activities Act, 1985 (in short the Act) by detaining the detenu as
a bootlegger as defined under Section 2(b) of the Act.
2. Learned
advocate for the detenu restricted his arguments to the extent of
order of detention and submits that registration of two FIRs itself
cannot lead to disturbance of even tempo of public life and therefore
the public order. The order of detention is assailed by the
detenu on various grounds mentioned in the memo of the petition.
However, learned counsel for the detenu has focused his arguments
mainly on the ground that except two FIRs registered under the
Bombay Prohibition Act, there was no other material before the
detaining authority whereby it could be inferred reasonably that the
detenu is a ‘bootlegger’ within the meaning of Section 2(b) of the
Act and required to be detained as the detenu’s activities are
prejudicial to the maintenance of public health and public order. In
support of the above submission, learned counsel for the detenu has
placed reliance on relevant observations made by the Apex Court in
the case of Piyush Kantilal Mehta vs.
Commissioner of police, AIR 1989 Supreme Court 491 and
the Judgment and order dated 22.8.2000 of
the Division Bench of this Court (Coram: M.R. Calla & R.R.
Tripathi, JJ.), in Letters Patent Appeal No.223 of 2000 in
Special Civil Application No.554 of 2000 (Ashok Balabhai Makwana vs.
State of Gujarat) which would squarely help the detenu.
Learned advocate for the detenu further submits that no
affidavit-in-reply is filed by the State Government.
3. In
view of the above, subjective satisfaction of the detaining authority
that anti-social activities carried out by the detenu are detrimental
to public order stands vitiated and order of detention based on such
satisfaction deserves to be quashed and set aside.
4. Learned
Assistant Government Pleader submitted that registration of two
complaints would go to show that the detenu had, in fact, indulged
into such activities, which can be said to be disturbing the public
health and public order. Learned Assistant Government Pleader
further submitted that there was sufficient material before the
detaining authority to pass the order of detention and no
interference is called for by this Court in exercise of its power
under Article 226 of the Constitution of India.
5. Having
heard the rival submissions of the parties and perused the record of
the case, I am of the view that two complaints registered under the
Bombay Prohibition Act alone cannot be said to be sufficient enough
to arrive at subjective satisfaction to the effect that the
activities, as alleged, are prejudicial to the public order. The
registration of FIRs under Bombay Prohibition Act ipso facto
does not lead to disturbance of public order. There has to be nexus
and link for such activities with disturbance of the public order.
The activities of the detenu must, in the backdrop of the facts,
reflect that such activities disturbed or likelihood of disturbing
the tempo of normal life of society or general peace and tranquility
or create a sense of alarm and insecurity in the locality. The
impugned order suffers from vice of non-application of mind inasmuch
as the cases in which the detaining authority has placed reliance do
not indicate that the liquor seized from the detenu is detrimental
to the health of public at large.
6. On
careful perusal of the material available on record and the ratio
laid down by the Apex Court in the case of Piyush Kantilal Mehta
(supra) and the Judgment and
order dated 22.8.2000 of the Division Bench of this Court (Coram:
M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent Appeal No.223
of 2000 in Special Civil Application No.554 of 2000 (Ashok
Balabhai Makwana vs. State of Gujarat), I am of the
view that the activities of the detenu cannot be said to be in any
manner prejudicial to the public order and therefore, the order of
detention passed by the detaining authority cannot be sustained and
is required to be quashed and set aside.
7. In
the result, the petition is allowed. The order of detention dated
4.11.2008 passed by the respondent No. 1 is quashed and set
aside. The detenu, is ordered to be set at liberty forthwith if he is
not required in connection with any other case. Rule is made
absolute accordingly. Direct service is permitted.
[ANANT S. DAVE, J.]
msp
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