SCA/8158/2008 2/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8158 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 ? ========================================================= HARSHIL ALIAS BITTU JANAKBHAI DAVE - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS SUBHADRA G PATEL for Petitioner(s) : 1, MR DR CHAUHAN, AGP for Respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 13/10/2008 ORAL JUDGMENT
1. Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. The
brother of 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
7.3.2008 passed by the respondent No.2-Commissioner of Police,
Ahmedabad City, in exercise of power under sub-section(2) of Section
(3) of the Gujarat Prevention of Anti Social Activities Act, 1985
(ýSPASA Actýý for short) whereby the detenue has been detained as a
ýSbootleggerýý. In pursuance of the said impugned order, the
detenue is detained in District Jail, Bhavnagar.
3. From
the grounds of detention, it appears that only one offence being CR
No.5029 of 2008 under the provisions of Section 66B, 65AE and 116.1B
under the Bombay Prohibition Act, was registered with Vejalpur Police
Station, wherein a quantity of total 279 bottles of foreign liquor
were 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 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 ýSpublic order.ýý 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 ýSlaw
and orderýý and not ýSpublic orderýý. 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 ýSlaw and
orderýý and not ýSpublic orderýý.
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 ýSpublic orderýý
and it is very clear that the present would not fall within the
category of threat to ýSpublic orderýý. 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 7.3.2008 passed by the detaining
authority is hereby quashed and set aside. The detenue is ordered to
be set at liberty forthwith, if not required in any other case. Rule
is made absolute accordingly. Direct service is permitted.
Sreeram.
(M.D.Shah,
J.)