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SCA/9980/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9980 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
IMTIYAZ
KASAMBHAI J MEMON - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MM TIRMIZI for
Petitioner(s) : 1,
MR LB DABHI, AGP for Respondent(s) : 1,
RULE
SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 21/10/2010
ORAL
JUDGMENT
The
petitioner detenu filed the present petition under Article 226 of
the Constitution of India, challenging his detention pursuant to the
detention order dated 01/07/2010, which was executed on the same
day, passed by the respondent – Police Commissioner, Ahmedabad
City, by exercising the powers conferred under sub-section (2) of
Secmtion 3 of the Gujarat Prevention of Anti Social Activities Act,
1985 (“PASA Act”, for short). The petitioner is branded
as “bootlegger”.
Heard
Mr. MM Mansuri, Ld. Advocate for Mr MM Tirmizi, Ld. Advocate for
the petitioner and Mr. LB Dabhi, learned AGP for the respondents.
The
petitioner came to be detained as “bootlegger” on his
involvement in two offences arising under the Bombay Prohibition
Act.
It
has been submitted by the learned Counsel for the petitioner that it
is a settled legal position 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. It has
been further submitted by the learned Counsel for the petitioner
that there is gross delay in passing the order of detention.
Per
contra, Mr. LB Dabhi, learned AGP representing the respondents
supported the detention order dated 01/07/2010 passed by respondent
– Commissioner of Police, Ahmedabad City and submitted that
before passing the detention order, the detention authorities took
into consideration all the relevant papers and after subjective
satisfaction, the detention order is passed and thus the detention
order is legal and proper and no interference in the said order is
warranted and consequently the petition deserves dismissal.
I
have gone through the grounds of detention and considered the
submissions advanced on behalf of both the sides.
The
Court is of the opinion that there is much substance in the
arguments advanced by learned Counsel for the petitioner. It is seen
from the grounds that a general statement 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.
Except
the general statement, there is no material on record which shows
that the petitioner – detenu is carrying on illegal activities
of selling liquor or is engaged in such activity, which is harmful
to the health of the public. In the case of ASHOKBHAI JIVRAJ @
JIVABHAI SOLANKI v/s. 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 v/s. 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, this petition is allowed. The impugned order of detention
dated 01/07/2010 passed by the respondent – Commissioner of
Police, Ahmedabad City, is hereby quashed and set aside. The detenue
is ordered to be set at liberty forthwith, if not required in any
other case. Rule made absolute accordingly. DS permitted.
(J.C.UPADHYAYA,
J.)
*
Pansala.
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