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SCA/7170/2010 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7170 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
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 ?
=========================================
HARISH
MOHANSING THAPA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
MR AMRISH K
PANDYA for
Petitioner(s) : 1,
MR JANAK RAVAL, LD. ASST. GOVERNMENT PLEADER
for Respondent(s) : 1 - 3.
RULE SERVED BY DS for Respondent(s) : 1
- 2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 12/08/2010
ORAL
JUDGMENT
By
this petition under Article 226 of the Constitution of India, the
petitioner has challenged the order of detention dated 27th
April 2010 passed by the respondent no.2-Commissioner of Police,
Vadodara City, in exercise of powers under sub-section (2) of
Section 3 of the Prevention of Anti-Social Activities Act, 1985
(hereinafter referred to as ‘the Act’), whereby the petitioner has
been detained as a bootlegger .
Heard
Mr.Amrish Pandya, learned counsel for the petitioner, and Mr.Janak
Raval, learned Assistant Government Pleader, for the respondents.
Mr.Pandya
has drawn the attention of the Court to the impugned order of
detention to submit that the same is based on two prohibition
offences under Sections 66(1)(b), 65(A)(E), 116(1)(b) and 81 of the
Bombay Prohibition Act.
It
has been submitted by the learned counsel for the petitioner that on
registration of two offences, no order of detention could have been
passed as petitioner-detenu cannot be branded as bootlegger .
It has been further submitted that the activities of the petitioner
cannot be said to be injurious to the public health or public order.
The
Court is of the opinion that there is much substance in the
arguments advanced by learned counsel for the petitioner. A perusal
of the entire grounds of detention clearly shows that the only
ground for arriving at the subjective satisfaction that the
activities of the petitioner are prejudicial to the maintenance of
public order is that the petitioner is a bootlegger. There is
nothing to show as to how the activities of the petitioner are
prejudicial to the maintenance of public order nor is there any
material on record to support such a finding. Merely on the basis of
the fact that an offence under the Bombay Prohibition Act has been
registered against the petitioner, the detaining authority has
arrived at the subjective satisfaction that the activities of the
petitioner are prejudicial to the maintenance of public order and
public health. Insofar as the activities being prejudicial to public
health, there is nothing on record to show as to how the activities
of the petitioner are prejudicial to public health, or that the
activities of the petitioner are causing or likely to cause
widespread danger to life or public health. According to the
detaining authority the activity of selling liquor, per se, amounts
to an activity that is prejudicial to the maintenance of public
order and public health.
Except
the general statement, 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 public. In the case
of Ashokbhai Jivraj @ Jivabhai Solanki Vs Police Commissioner,
Surat, reported in 2001(1)
GLH 393, having considered the
decision of the Hon’ble Apex Court in the case of Ram
Manohar Lohia Vs State of Bihar, reported
in AIR 1966 SC 740, this
Court held that the cases wherein the detention order are passed on
the basis of the statements of such witness fall under the
maintenance of law and order and not public order .
Applying
the ratio of the above decisions, it is clear that before passing an
order of detention, the detaining authority must come to a definite
findings 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.
For
the foregoing reasons, the petition succeeds and is, accordingly,
allowed. The
impugned order of detention dated 27th
April 2010 passed by the Commissioner of Police, Vadodara City, is
hereby quashed and set aside, and the detenu is hereby ordered to be
set at liberty forthwith, if not required to be detained in any
other case. Rule is made absolute accordingly.
Direct
service is permitted.
(Z.
K. Saiyed, J)
Anup
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