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SCA/7659/2006 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7659 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
ABDUL
GAFURKHAN AIYUBKHAN PATHAN - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AR MAJMUDAR for
Petitioner(s) : 1,MR NK MAJMUDAR for Petitioner(s) : 1,
RULE
SERVED for Respondent(s) : 1 - 2.
GOVERNMENT PLEADER for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/07/2006
ORAL
JUDGMENT
1.0 The
petitioner-detenu
has filed this petition challenging the order of detention dated
26.12.2005 passed by District Magistrate, Bharuch City under the
provisions of sub-Section (2) of Section 3 of the Gujarat Prevention
of Anti-social Activities Act, 1985 (hereinafter referred to as the
‘PASA Act’).
2.0 Learned
Advocate for the petitioner has invited my attention to the order of
detention dated 26.12.2005 by which petitioner-detenu was arrested
and sent to District Jail, Jamnagar as well as to the grounds
supplied by the detaining authority, therein. As the ground of
detention, one criminal case is shown as registered against the
petitioner-detenu being C.R. No.1190/05 dated 06.12.2005 at Jaghdia
police station, Dist. Bharuch punishable under Section 66B, 65A,E,
116(B) and 81 of the Bombay Prohibition Act. In connection with the
said offence the authority seized 3502 bottles of English liquor and
beer with other things, in all valued at Rs.18,11,950/-.
2.1 He has
further submitted that in the order of detention it was stated that
the petitioner-detenu is carrying on anti-social activities and on
the basis of solitary offence of ‘bootlegging’ registered against the
petitioner-detenu, he was termed as ‘Bootlegger’ within the meaning
of Section 2(b)of the P.A.S.A. Act. It was also stated in the
impugned order that as the said bootlegging activities of the detenu
are dangerous and affecting maintenance of ‘public order’ and ‘public
health’, order of detention has been passed against him.
2.2 He
has further submitted that on the basis of only one criminal case
registered against the petitioner-detenu, he cannot be termed as
‘Bootlegger’. In support of his case he has placed reliance
on a decision of this Court passed in the case of ?SSohanlal
Surajram Visnoi Vs. State of Gujarat and Ors.??
reported in 2004(2)GLR 1051 wherein it was held as under,
?SIt
may be noted that the contention advanced on behalf of the
petitioners that no preventive detention order can be recorded in a
solitary incident or instance or offence cannot be accepted in toto.
The detaining authority can pass the order of detention even on
the basis of a solitary incident or instance, provided there is
justifiable subjective satisfaction on objective material and
consideration that such incident or offence is likely to create
disturbance of ?SPublic Order??. Emphasis is laid on ?SPublic
Order?? and not on ?SLaw and Order?? which belongs to the
realm of general law. After having taken into account the statutory
definitions of the persons branded as ?Sbootlegger?? or ?Sdangerous
person?? under the P.A.S.A. Act, and detailed factual matrix of each
case, the solitary incident or instance in question in these
petitions has not been shown or spelt out from the record as
affecting the ?SPublic Order?? or likely to create public
disturbance or prejudicial or adverse to the maintenance of ?SPublic
Order??, and therefore, the continued detention of the detenus in
each case has not been shown to be justifiable, …??
2.3 Hence,
he has submitted that the impugned order deserves to be quashed and
set aside.
3.0 On the
contrary, learned A.G.P. for respondent-detaining Authority has
supported the order of detention as well as grounds stated therein
and has contended that the Authority has passed the impugned order
after taking into consideration all the facts and circumstances of
the case, and hence, no case is made out calling for interference of
this Court.
4.0 As a
result of hearing and perusal of the record it appears that in this
case the only material is one criminal case registered against the
petitioner-detenu and on the basis of that it cannot be said that the
activity of the detenu has become a threat to the maintenance of
‘public order’ and ‘public health’. The offence committed by the
petitioner pertains to prohibition to which I have already made
reference in my earlier part of the judgment. Mere involvement of
petitioner in bootlegging activities may not amount to dangerous
activity by petitioner-detenu and mere mention of them unless
supported by any evidence cannot be said to be material and germane
for the purpose of arriving at subjective satisfaction that the
activity of the petitioner-detenu is prejudicial to the maintenance
of ‘public order’ and ‘public health’.
4.1 I am,
therefore, of the view that the detaining authority has passed the
order of detention without there being any credible or cogent
material on record in this behalf. I have considered factual and
legal aspects emerging from the record of the petition and considered
the rival submissions and the facts of the case and also considered
the judgment of this Court in the case of Sohanlal
Sujaram Visnoi (Supra).
In view of the facts and circumstances of the present case and also
ratio laid down in the case mentioned above, the order of detention
cannot be sustained and it deserves to be quashed and set aside.
5.0 In the
result, this petition is allowed. The order of detention dated
26.12.2005 passed by District Magistrate, Bharuch city is hereby
quashed and set aside. The petitioner-detenu is, therefore, ordered
to be set at liberty forthwith, if he is not required in connection
with any other case by the Authority. Rule is made absolute
accordingly. Direct service is permitted.
(K.S.
Jhaveri,J.)
Umesh/
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