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SCA/3782/2008 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3782 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 ?
=========================================================
KAMLESH
ARJUNDAS SHARMA THRO MOTHER-GAURIBEN ARJUNDAS - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MATAFER R PANDE for
Petitioner.
Ms. Bhavika Kotecha, AGP for the
respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
ate
: 26/06/2008
ORAL
JUDGMENT
Heard
Mr.M.R.Pande for the petitioner and learned AGP Mr. A.J.Desai for
the respondents.
By
way of the the present petition, the petitioner-detenu has
challenged the legality and validity of the order of detention dated
15-12-2007 passed by the Police Commissioner, Surat City, in
exercise of powers under the provisions of the Gujarat Prevention of
Anti-Social Activities Act, 1985( for short ?Sthe Act??).
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 in the transportation
and illegal sale and distribution of prohibited foreign liquor.
While passing the order of detention the detaining authority has
mainly considered the fact of registration of a single offence
punishable under Sections 66(1)B, 65AE, 116(B)and 81 of the Bombay
Prohibition Act registered as CR no.954 of 2007 dt.7-12-2007 and the
statement of the accused in the prohibition case.
The
learned Advocate for the petitioner-detenu has assailed the order
under challenge on various grounds. However,this petition is capable
of being disposed of on the sole ground as to whether there was
credible material placed before the detaining authority to come to
the conclusion that by the activities of the petitioner, public
order was disturbed or that public health was disturbed adversely.
To
reach to the subjective satisfaction that bootlegging activities of
the petitioner were prejudicial to the maintenance of public order
and public health, the detaining authority must rely upon credible
and cogent material that the activities of the petitioner directly
or indirectly were causing or were likely to cause any 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 or
the public health. While undertaking this exercise, the detaining
authority must draw a clear line between the cases falling within
breach of law and order and breach of public order.
The
facts of the present case are squarely covered by a decision of the
Apex Court in the matter of Darpan @ Dharban Kumar Sharma vs.
State of Tamil Nadu and Ors. (2003) 2 SCC 313 wherein while
dealing with solitary instance of robbery as ground for preventive
detention, the Apex Court observed that there is nothing on record
to show that the reach and potentiality of the incident was so grave
as to disturb the even tempo of life of the community in the
locality or disturb general peace and tranquility or create a sense
of alarm and insecurity in the locality. Solitary instance of
robbery was held not relevant for sustaining the order of detention
and that such incident could hardly be said to disturb public peace
or public order in jeopardy so as to bring the case within the
purview of preventive detention.
In
the present case, the detaining authority has taken into
consideration the investigation papers in solitary case registered
against the petitioner under the Bombay Prohibition Act. This case
is registered against the petitioner as he was found in possession
of 360 bottles of prohibited foreign liquor and that he was engaged
in the business of storing and selling foreign liquor in breach of
law for which the petitioner can be adequately punished if found
guilty. Surely, the act constituting the offence cannot be said to
have affected the even tempo of life of the community. 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 as the subjective satisfaction arrived
at by the detaining authority not legal and valid. The order under
challenge is required to be quashed and set aside on this ground
alone.
In
the result, the petition is allowed. The impugned order of detention
dated 15-12-2007 passed by the Police Commissioner, Surat City, is
hereby quashed and set aside and detenu 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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