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SCA/1104/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1104 of 2010
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 ?
=========================================================
ANILBHAI
KESHAVBHAI CHAVDA THROUGH HIS MOTHER MAYABEN - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MATAFER R PANDE for
Petitioner(s) : 1,
MS JIRGA JHAVERI, AGP for Respondent(s) :
3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 11/05/2010
ORAL
JUDGMENT
1. Heard
learned advocate for the petitioner and learned AGP for the
respondents.
2. The
petitioner-detenue has preferred this petition under Article 226 of
the Constitution of India, for appropriate writ, order or direction
for quashing and setting aside the impugned order dated 4.12.2009
passed by the respondent No.2-Commissioner of Police, Surat City in
exercise of power under sub-section (1) of Section 3 of the Gujarat
Prevention of Anti Social Activities Act, 1985 ( PASA Act for
short) whereby the petitioner has been detained as a bootlegger .
In pursuance of the said impugned order, the petitioner is detained
in jail, Rajkot on 4.12.2009.
3. Along
with the detention order, the petitioner detenue has been supplied
with the grounds of detention. From the grounds of detention, it
appears that two offences being III CR Nos.328 of 2009 and 384 of
2009 have been registered against the detenue. Both the offences
have been registered with Amroli Police Station under the provisions
of Sections 66(1)B, 65EA, 81 and 116(1)B of the Bombay Prohibition
Act, wherein total quantity of 93 bottles of foreign liquor was found
from the possession of the detenue. On the basis of registration of
these cases, the detaining authority held that the present detenue
was carrying on activities of selling foreign liquor which is harmful
to the health of the public. It is held by the detaining authority
that as the detenue is indulged in illegal activities, it is required
to restrain the detenue 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 detenue can, by
no stretch of imagination, be said to be disturbing the public
order. It is seen from the grounds of detention 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 arrived at by the detaining authority is
vitiated on account of non-application of mind and the impugned
order, therefore, deserves to be quashed and set aside.
4. Except
the statements of some anonymous witnesses, there is no material on
record which shows that the petitioner-detenue is carrying on
activities of selling foreign 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 passed on the basis
of the statements of the witnesses falls under the maintenance of
law and order and not public order .
5. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenue, 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 would not fall within the
category of threat to 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. The
petition is allowed. The impugned order of detention dated 4.12.2009
passed against the detenu is hereby 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 accordingly. Direct service is
permitted.
(M.D.Shah,
J.)
pathan
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