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SCA/11994/2009 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11994 of 2009
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 ?
=========================================================
ALLARAKHA
@ IMRANA MAKBULBHAI SHAIKH - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance :
MS
BANNA S DUTTA for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 2.
Mr
GOVERNMENT PLEADER for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 27/01/2010
ORAL
JUDGMENT
The
petitioner-detenu has preferred this petition under Article 226 of
the Constitution of India for appropriate writ, order or direction
for quashing and setting aside the order dated 03.9.2009 passed
by Police Commissioner, Ahmedabad City, whereby, in exercise of power
under sub-section (2) of section 3 of the Gujarat Prevention of Anti
Social Activities Act, 1985 (for short, ‘PASA Act’) the petitioner
has been detained as a bootlegger. In pursuance of the said impugned
order, the petitioner is detained in jail.
Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
No affidavit-in-reply is filed by the learned AGP on behalf of the
respondents controverting the averments made in the petition. The
affidavit-in-reply filed by the learned AGP on behalf of the
respondents is taken on record and considered.
From
the grounds of detention, it appears that three offences being
CR.I.No.5041 of 2007, 4074 of 2009 and 5153 of 2009 under sections
66 (1)b and 65(e) etc. under the Bombay Prohibition Act, were
registered with Gomtipur police station, wherein quantity of 114
bottles, 11 bottles and 1 bottle of foreign liquor were found from
the possession of the detenu. On the basis of registration of
these cases, the detaining authority held that the present detenu was
carrying on activities of selling country liquor which is harmful to
the health of the public. It is held by the detaining authority that
as the detenu is indulged in illegal activities, it is required to
restrain her from carrying out further illegal activities i.e.
selling of liquor. The detaining authority has placed reliance on
the above registered offences and statements of unnamed witnesses.
In the opinion of this court, the activities of the detenu can, by
no stretch of reasoning, be said to be disturbing the public order.
It is seen from the grounds that a general statement that has been
made by the detaining authority that consuming liquor is injurious to
health. In fact, a perusal of the order passed by the detaining
authority shows that the grounds which are mentioned in the order are
in reference to the situation of ‘law and order’ and not ‘public
order’. Therefore, on this ground, the subjective satisfaction of
the detaining authority is vitiated on account of non-application of
mind and the impugned order, therefore, deserves to be quashed and
set aside.
3. Except
two statements of the anonymous witnesses, there is no material on
record which shows that the petitioner-detenu is carrying out illegal
activities of selling 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 that the cases wherein the detention order are passed on
the basis of the statements of such witnesses fall under the
maintenance of law and order and not public order .
4. 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 a public order. 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,
cannot be sustained and, therefore, it deserves to be quashed and set
aside.
6. In
the result, this
Special Civil Application is allowed. The impugned order of
detention dated 03.9.2009 passed by the Police Commissioner,
Ahmedabad City is 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. Direct service is permitted.
[M.D. SHAH, J.]
msp
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