Gujarat High Court Case Information System
Print
SCA/118/2008 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 118 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 ?
=========================================================
MALSINH
MANGALSINH SOLANKI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Petitioner.
Ms. Bhavika Kotecha, AGP for the
respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 19/06/2008
ORAL
JUDGMENT
1.
Heard Ms.S.G.Patel, for the petitioner and learned A.G.P. Ms. Bhavika
Kotecha,for the respondents.
2.
By way of the the present petition, the petitioner-detenu has
challenged the legality and validity of the order of detention dated
3-12-2007 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 prohibited foreign liquor. While passing the
order of detention the detaining authority has considered the fact of
registration of two cases ? CR no.260/2007 dt.20-11-2007, CR
no.116/2006 dt.27-8-2006 one for the offence punishable under
Secs.66(1)B, 65AE, 116(k), 81 and of the Bombay Prohibition Act while
the other for the offence punishable under Sections 504, 506() and
114 of the Indian Penal Code and the statement of the accused in the
prohibition cases.
4.
The learned Advocate for the petitioner-detenu 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 bootlegging
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 detenu 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 two pending criminal cases registered
against the petitioner and the activities of the petitioner of
engaging himself in the illegal sale and distribution of prohibited
foreign liquor can at the most be said to be involving law and order
problem 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..??
7.
In the result, the petition is allowed. The impugned order of
detention dated 3-12-2007 passed by the District Magistrate, Kheda,
Nadiad,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.
Top