SCA/8514/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8514 of 2008 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 ? ========================================================= BHARTIBEN UDAJI JESINGJI THAKORE - Petitioner(s) Versus COMMISSIONER OF POLICE AHMEDABAD CITY & 2 - Respondent(s) ========================================================= Appearance : MS DR KACHHAVAH for Petitioner(s) : 1,MR KAMLESH KACHHAVAH for Petitioner(s) : 1,2 - 3. Ms D S Pandit, Asstt.GOVERNMENT PLEADER for Respondent(s) : ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 07/07/2008 ORAL JUDGMENT
1. 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 30.11.2007 passed by
respondent No.1-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.
2. From the grounds of
detention, it appears that seven offences being CR.I.Nos. 5037 of
2006, 5078, 5094, 5221, 5226, 5230 and 5268 of 2007 under sections
66 (1)b and 65(e) etc. under the Bombay Prohibition Act, were
registered with Madhavpura police station, wherein country liquor
was 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 ýSlaw
and orderýý and not ýSpublic orderýý.
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.
5. In the result, this Special
Civil Application is allowed. The impugned order of detention dated
30.11.2007 passed by the Police Commissioner, Ahmedabad 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.]
msp