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SCA/3868/2008 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3868 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 ?
=========================================================
JASUBHAI
@ JAHO FATESINH MAHIDA - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
HR PRAJAPATI for
Petitioner.
Mr.A.J.Desai, AGP for the
respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 26/06/2008
ORAL
JUDGMENT
1.
Heard Mr.H.R.Prajapati for the petitioner and learned
A.G.P.Mr.A.J.Desai for the respondents.
2.
By way of the the present petition, the petitioner-detenue has
challenged the legality and validity of the order of detention dated
27-11-2007 passed by the District Magistrate, Kheda, Nadiad in
exercise of powers under the provisions of the Gujarat Prevention of
Anti-Social Activities Act, 1985( for short ?Sthe Act??).
3.
The petitioner-detenu is branded as a ?S bootlegger?? within the
meaning of Sec.2 (b) of the Act as he was found involved in offences
under the Bombay Prohibition Act by engaging himself in the illegal
sale and distribution of country liquor. While passing the order of
detention the detaining authority has considered the fact of
registration of five cases ? CR no.380/2006 dt.10-10-2006 , CR
no.27/2007 dt.25-1-2007, CR no.1015/2007 dt.6-8-2007 , CR no.322/2007
dt.29-10-2007,and CR no.323/2007 dt.29-10-2007 all for the offence
punishable under Secs.66B, 65A, 65E, 67A, 116(B), 81 and 83 of the
Bombay Prohibition Act and the statement of the accused in the
prohibition cases. He was found to be in possession of Indian made
foreign liquor in the said offences.
4.
The learned Advocate for the petitioner-detenue has assailed the
order under challenge on various grounds as mentioned in the memo of
petition. However,this petition is capable of being disposed of on
the sole ground as to whether there was cogent and credible material
placed before the detaining authority to come to the conclusion that
by the activities of the petitioner, the public order was disturbed.
5.
To reach to the subjective satisfaction that the bottlegging
activities of the petitioner were prejudicial to the maintenance of
public order, the detaining authority must rely upon credible and
cogent material indicating that the activities of the detenue
directly or indirectly were causing or were likely to cause harm,
danger or alarm or feeling of insecurity among the general public or
any section thereof or a grave or widespread danger to life, property
etc. While undertaking this exercise, the detaining authority has to
draw a clear line between the cases falling within the category of
breach of law and order and the cases falling within the category of
breach of public order.
6.
In the present case, the five pending criminal cases registered
against the petitioner under the Prohibition Act and the activities
of the petitioner of engaging himself in the illegal sale and
distribution of Indian made foreign liquor can at the most be said to
be involving law and order problem for which for which the petitioner
can be adequately punished. It is therefore difficult for this Court
to accept that the petitioner has been rightly detained as the
activities of the petitioner can at the most be termed as affecting
law and order. In short, no further discussion on the other points
raised in this petition is required as in the opinion of this Court,
the order of detention is not sustainable in the eye of law. In this
context reference may be had to the decision rendered in the case of
Harpreet Kaur vs. State of Maharashtra, reported in 1992 SC 797,
wherein it has been held that involvement of the accused in fourteen
offences including lifting of gas cylinders cannot be said to be
prejudicial to the maintenance of public tranquility and the
authority was not justified in arriving at the subjective
satisfaction that the activities of the petitioner were likely to
affect the maintenance of public tranquility..?? Similarly, in the
decision rendered in the case of Surajsinh alias Suru alias Suresh
Lallusinh Rajput, ( 2004(1) G.L.H.454) it has been held as under
at para 7 of the judgment:
?S7……..In
order to bring the activities of a person within the expression of
acting in any manner prejudicial to the maintenance of public order,
the fall out and extent and reach of the alleged activities must be
of such a nature that they travel beyond the capacity of the
ordinary law to deal with him or to prevent his subversive
activities affecting the community at large or a large section of
society…..??
7.
In the result, the petition is allowed. The impugned order of
detention dated 27-11-2007 passed by the District Magistrate, Kheda,
Nadiad, is hereby quashed and set aside and detenue is hereby ordered
to be set at liberty forthwith, if not required to be detained in any
other case. Rule is made absolute. Direct service is permitted.
(M.D.Shah,J.)
lee.
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