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SCA/13710/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13710 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 ?
=========================================================
BECHARBHAI
@ MAGANBHAI VELAJI DAMOR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MR PRAJAPATI for
Petitioner(s) : 1,
MS VANDANA BHATT, 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 11.12.2009
passed by the respondent No.2-Commissioner of Police, Ahmedabad 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 detenue has been detained as a bootlegger .
In pursuance of the said impugned order, the detenue is detained in
Jail, Morbi on 11.12.2009.
3. Along
with the detention order, the petitioner detenu has been supplied
with the grounds of detention. From the grounds of detention, it
appears that only one offence being Prohibition CR No.5034 of 2009
under the provisions of Section 66-1B, 65AE, 116B and 81 under the
Bombay Prohibition Act was registered with DCB Police Station,
wherein a quantity of total 237 bottles of foreign liquor was found
from the possession of the detenue. On the basis of registration of
this case, the detaining authority held that the present detenue was
carrying on activities of selling 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 detenu from carrying out further illegal activities,
i.e. selling of liquor. The detaining authority has placed reliance
on the above registered offence 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 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 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 11.12.2009
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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