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SCA/12784/2009 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12784 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
=========================================================
ASHISH
S/O DHIRENBHAI ALIAS DHIRUBHAI THAKAR
Versus
STATE
OF GUJARAT & OTHERS
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Petitioner(s) : 1,
MS JIRGA JHAVERI, ASST. GOVERNMENT PLEADER for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 27/04/2010
ORAL
JUDGMENT
By
filing this writ petition under Article 227 of the Constitution of
India, the detenu has challenged the order of detention No.
PCB/DTN/PASA/192/2009 dated 18.09.2009 passed by the Commissioner of
Police, Rajkot respondent No. 2, in exercise of powers under
sub-section (1) of section 3 of the Gujarat Prevention of Anti Social
Activities Act, 1985 [hereinafter referred to as the PASA Act]
detaining the detenu as a bootlegger, as being illegal, invalid,
arbitrary, void ab-initio and suffers from total non-application of
mind and also in violation of the provisions of Articles 14, 21 and
22 of the Constitution of India.
Learned
advocate for the detenu, Ms. Subhadra Patel submitted that the
grounds of detention do not indicate any satisfaction recorded by the
detaining authority that the activities of the detenu are detrimental
to public order , and, therefore, the detention order is bad and
illegal. She submitted that the detaining authority has placed
reliance on a solitary case under the Prohibition Act but the same do
not indicate anything to support disturbance to public order .
She submitted that the offence was registered on 25.08.2009, the
detenu was arrested on 25.08.2009, and the detenu was released on
bail 25.08.2009 but the detention order is passed on 18.09.2009.
Learned advocate therefore submitted that there is a delay in passing
the order of detention and on this ground also, the detention order
requires to be quashed and set aside.
Ms.
Jirga Jhaveri, learned AGP submitted that the detention order is
just and proper and detaining authority has passed the order after
considering all relevant aspects of the matter, and the same needs no
interference.
Heard
learned counsel appearing for both the sides. I have also perused the
records available in the compilation.
It
appears that on the basis of a solitary case, viz. Prohibition C.R.
No. 279 of 2009 dated 25.08.2009 registered at Gandhigram Police
Station, Rajkot for 52 bottles of foreign liquor against the detenu,
the detaining authority held that the said activities of selling
liquor of the present detenu were harmful to the health of the
public, and to restrain from carrying further illegal activities, the
detenu has been detained. It further appears that the offence was
registered on 25.08.2009, the detenu was arrested on 25.08.2009, the
detenu was released on bail 25.08.2009 but the detention order is
passed on 18.09.2009, i.e. after 23 days from the date he was
released on bail. Hence there is a delay in passing the order of
detention. On this ground alone, this petition requires to be
allowed.
Another
submission of the learned advocate for the detenu is that the grounds
of detention do not indicate any satisfaction recorded by the
detaining authority that the activities of the detenu are detrimental
to public order and at the most it can be said to be breach of
law and order . Except the statements of some anonymous
witnesses, there is no material on record which shows that the detenu
is carrying on activities of selling liquor which is harmful to the
health of the public. She further submitted that during the period of
33 days i.e. from the date he was released on bail till he was
detained, no offence is alleged against the detenu and therefore it
cannot be at all said that the
activities of the detenu are detrimental to public order .
In
the case of Collector and DIST. MAGISTRATE V/S. SULTAN
reported in AIR 2008 SC 2096 the Apex Court has distinguished
between public order and law and order and held that the
distinction between the areas of ‘law and order’ and ‘public order’
is one of the degree and extent of the reach of the act in question
on society which would disturb the even tempo of life of the
community and if the effect is confined only to a few individuals
directly involved as distinct from a wide spectrum of public, it
could raise problem of law and order only.
Applying
the ratio of the above decision, it is clear that before passing an
order of detention of a detenu, the detaining authority must come to
a definite finding that there is threat to the public order and
it is very clear that the present case would not fall within the
category of threat to public order . Even the quantity involved
is small, i.e only 52 bottles of foreign liquor. 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,
it cannot be sustained and, therefore, it deserves to be quashed and
set aside.
For
the foregoing reasons, the petition is allowed. The impugned order of
detention dated 18.09.2009 passed by the Police Commissioner, Rajkot
City, respondent No.2 against the detenu is hereby quashed and set
aside. The detenu is ordered to be set at liberty forthwith, if
not required in any other case. Rule is made absolute
accordingly. Direct service is permitted.
mathew [
H.B. ANTANI, J.]
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