IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 10873 of 2004
For Approval and Signature:
HON'BLE MR.JUSTICE J.R.VORA
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1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
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SAJID SIRAJBHAI MANSURI
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 10873 of 2004
MS SHAHIN QURESH for MR MM TIRMIZI for Petitioner No. 1
MR HM PRACHCHHAK AGP for Respondent No. 1-3
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CORAM : HON’BLE MR.JUSTICE J.R.VORA
DATE OF DECISION: 01/02/2005
ORAL JUDGEMENT
1.This Special Civil Application under Article 226
of the Constitution of India has been filed by the
petitioner challenging his detention in pursuance of the
order passed against him by Police Commissioner,
Ahmedabad City, on 06th of August, 2004, in exercise of
powers conferred upon him under Section 3(1) of the
Gujarat Prevention of Anti Social Activities Act, 1985
(PASA Act for short). The petitioner is under detention
as bootlegger from 6th of August, 2004 in pursuance of
the above order.
2.The grounds of detention as placed on record
reveal that the detaining authority took into
consideration the fact of filing of solitary crime
against the petitioner before Prohibition Police Station,
Western Zone, on 03rd of August, 2004, under the Bombay
Prohibition Act, whereby the petitioner was found in
possession of foreign liquor to the extent of 225
bottles. The detaining authority took into consideration
thoroughly the investigation papers as placed before him
and came to the conclusion that the petitioner was
dealing in storing, selling and transporting prohibited
foreign liquor and therefore the petitioner was
bootlegger within the meaning of the PASA Act. The
detaining authority also came to the conclusion that the
activity of the petitioner was adversely affecting the
public health and maintenance of public order. The
detaining authority also came to the conclusion that the
activities of the petitioner were required to be
prevented forthwith and, therefore, after considering
other measures which may be taken against the petitioner
under the general law, as a last resort, the detaining
authority passed the detention order of the petitioner
which is under challenged in this petition.
3.Learned Advocate Ms.Shahin Qureshi for the
petitioner and learned AGP Mr.H.M. Prachchhak for the
respondents were heard at length. The affidavit-in-reply
filed by the detaining authority as placed on record by
learned AGP is also taken into consideration.
4.Out of various grounds urged on behalf of the
petitioner and controverted and opposed by learned AGP,
it appears that this petition can be examined and
disposed of on the sole issue that whether there was
credible material placed before the detaining authority
to come to the conclusion that by the activities of the
petitioner, the public order was disturbed and public
health was adversely affected.
5.To reach to the subjective satisfaction that
bootlegging activities of the petitioner were prejudicial
to the maintenance of public order and public health, the
detaining authority must rely upon credible and cogent
material that the activities of the petitioner directly
or indirectly were causing or were likely to cause any
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 or the public health.
While undertaking this exercise, the detaining authority
must draw a clear line between the cases falling within
breach of law and order and breach of public order.
6.The facts of the present case are squarely
covered by a decision of the Apex Court in the matter of
DARPAN KUMAR SHARMA vs. STATE OF T.N. , as reported in
(2003) 2 SCC 313 while dealing with solitary instance of
robbery as ground for preventive detention, the Apex
Court observed that nothing on record to show that the
reach and potentiality of the incident was so great as to
disturb the even tempo or normal life of the community in
the locality or disturb general peace and tranquility or
create a sense of alarm and insecurity in the locality.
Solitary instance of robbery held was not relevant for
sustaining the order of detention and such incident
hardly be said to disturb public peace or pubic order in
jeopardy so as to bring the case within the purview of
preventive detention.
7.In the present case, the detaining authority has
taken into consideration the investigation papers in
solitary case registered against the petitioner under the
Bombay Prohibition Act. This case is registered against
the petitioner because as per allegation he was found in
possession of prohibited foreign liquor in breach of law.
The petitioner may be tried and may be punished, if found
guilty for such breach of law, but the filing of such
case itself has no bearing on the question of maintenance
of public order or public health. Surely, the act
constituting the offence cannot be said to have affected
the even tempo of the life of the community. The
subjective satisfaction arrived at by the detaining
authority therefore is not valid, legal and according to
law. The order under challenge is required to be quashed
and set aside on this ground alone.
8.In the result,the petition is allowed. The order
passed by the Commissioner of Police, Ahmedabad City, on
6th of August, 2004, against the petitioner in exercise
of powers under Section 3(1) of the PASA Act is hereby
quashed and set aside. The petitioner – Sajid Sirajbhai
Mansuri is hereby ordered to be set at liberty forthwith
if he is not required to be detained in jail for any
other purpose. Rule made absolute. DS permitted.
(J.R. VORA, J.)
p.n.nair