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SCA/5145/2008 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5145 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 ?
=========================================================
KARSHANBHAI
DEVJIBHAI SOLANKI - Petitioner(s)
Versus
COMMISSIONER
OF POLICE OF THE CITY OF AHMEDABAD & 2 - Respondent(s)
=========================================================
Appearance
:
MS
BANNA S DUTTA for
Petitioner(s) : 1,
MS
SANDHYA NATANI, AGP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 06/08/2008
ORAL
JUDGMENT
1. Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. 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 15.2.2008
passed by the respondent No.1-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 (?SPASA Act??
for short) whereby the petitioner has been detained as a
?Sbootlegger??. In pursuance of the said impugned order, the
petitioner is detained in Surat Jail, Surat.
3. From
the grounds of detention, it appears that five offences being
Prohibition CR Nos.5264 of 2006, 5163 of 2007, 5007 of 2007, 5030 of
2007 and 5022 of 2007 have been registered against the detenu. The
first two offences have been registered at Amraiwadi Police Station
whereas the remaining three offences have been registered at Ramol
Police Station, under the provisions of Sections 66B, 65E and 81
under the Bombay Prohibition Act, wherein a quantity of total 27
ltrs. of country made liquor were found from the possession of the
detenue. On the basis of registration of these cases, the detaining
authority held that the present detenue was carrying on activities of
selling country made 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 ?Spublic order.?? 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 ?Slaw and order?? and not ?Spublic
order??. 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 country made 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
?Slaw and order?? and not ?Spublic order??.
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 ?Spublic order??
and it is very clear that the present would not fall within the
category of threat to ?Spublic 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.
6. In
the result, this Special Civil
Application is allowed. The impugned order of detention dated
15.2.2008 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.)
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