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SCA/13575/2010 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13575 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
=========================================================
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 ?
=========================================================
ISMAIL
GANIBHAI KOTHARIYA THROUGH SHADIK GANIBAI KOTHARI - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH PUBLIC PROSECUTOR & 2 - Respondent(s)
=========================================================
Appearance
:
MS
MITA S PANCHAL for
Petitioner(s) : 1,
MR NJ SHAH, AGP for Respondent(s) : 1,
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 27/10/2010
ORAL JUDGMENT
1. The
detenu Ismail Ganibhai Kothariya came to be detained on 30.6.2010
pursuant to the order dated 30.6.2010 passed by the Police
Commissioner, Ahmedabad City on basis of material placed before him.
The detaining authority took into consideration one offence
registered against the petitioner under the Bombay Prohibition Act
(hereinafter referred to as the Act ). The authority also
recorded in its reasons that the activity of the detenu was
detrimental to public health and public order and it was not possible
to deter him from the activities by following the regular procedure
of law.
2. Learned
advocate for the petitioner has, leaving aside the other contentions
raised in the petition, emphasized on the fact that only one offence
is registered against the detenu and he is labelled as a Bootlegger.
There is no other material on record to show that the petitioner is
involved in any other offence of similar nature to show that he is
repetitively engaged in Bootlegging and therefore, the subjective
satisfaction that the petitioner is a Bootlegger is without any
foundation which would vitiate the entire order.
3. It
is also contended that there is no material with the detaining
authority to record the satisfaction that the activity of the
petitioner was detrimental to public health or public order. The
material seized is not shown by any test to be detrimental to public
health and therefore also, the order gets vitiated.
4. Learned
AGP has opposed this petition.
5. When
the detaining authority has relied only on one offence registered
against the petitioner under the Bombay Prohibition Act to label him
as a Bootlegger, it is not possible to uphold the satisfaction as the
registration of single offence would not mean that it is the
petitioner’s usual activity. He would, therefore, not fall within the
definition of a Bootlegger.
6. Further
the satisfaction about the activity of the petitioner being
detrimental to public health and public order is not supported by any
cogent material like Chemical Examiner’s report or other material to
show that the material seized was dangerous to the public health.
7. The
Apex Court in the case of District Collector, Ananthapur Vs. V.
Laxmanna, reported in (2005) 3 SCC 663 has taken a view and
therefore, attracting the provisions of the Act, the detaining
authority must be satisfied on material available to it (such as
report of Chemical Examiner) that the arrack dealt with by the detenu
is dangerous to public health. In this case, no such material is on
record and in this count also, the subjective satisfaction of the
detaining authority gets vitiated.
8. The
petition, therefore, deserves to be allowed and the same is allowed.
The order dated 30.6.2010 detaining the detenu Ismail Ganibhai
Kothariya passed by the Police Commissioner, Ahmedabad City impugned
in the petition is hereby set aside. The detenu be set at liberty
forthwith, if not required in any other case. Rule is made absolute.
No costs. Direct service is permitted.
[A.L.
DAVE, J.]
mrpandya
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