SCA/2135/2008 2/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2135 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 ? ========================================================= MUKESHKUMAR MAFATBHAI PATNI THRO JAGDISHKUMAR MAFATBHAI - Petitioner(s) Versus COMMISSIONER OF POLICE & 2 - Respondent(s) ========================================================= Appearance : MR ANIL S DAVE for Petitioner(s) : 1, Mr Vinay Pandya, Asstt.GOVERNMENT PLEADER for Respondent(s) :. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 07/07/2008 ORAL JUDGMENT
1. The
petitioner-detenu has preferred this petition under Article 226 of
the Constitution of India for appropriate writ, order or direction
for quashing and setting aside the order dated 28.11.2007 passed by
respondent No.1-Commissioner of Police, Ahmedabad, whereby, in
exercise of power under sub-section (2) of section 3 of the Gujarat
Prevention of Anti Social Activities Act, 1985 (for short, ‘PASA
Act’) the petitioner has been detained as a bootlegger. In
pursuance of the said impugned order, the petitioner is detained in
jail.
Heard the learned advocate
for the petitioner and the learned AGP for the respondents.
2. From the grounds of
detention, it appears that one offence being CR.I.No. 5602 of 2007
under sections 66 (1)b and 65(e) etc. under the Bombay Prohibition
Act, was registered with Sardarnagar Police station, wherein country
liquor was found from the possession of the detenu. On the basis
of registration of this case, the detaining authority held that the
present detenu was carrying activities of selling liquor which is
harmful to the health of the public. It is held by the detaining
authority that as the detenu is indulged in illegal activities, it is
required to restrain him from carrying out further illegal activities
i.e. selling of liquor. The detaining authority has placed reliance
on the above registered offence and statements of unnamed
witnesses. In the opinion of this court, the activities of the
detenu can, by no stretch of reasoning, be said to be disturbing the
public 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 ‘law and order’ and
not ‘public order’. Therefore, on this ground, the subjective
satisfaction of the detaining authority is vitiated on account of
non-application of mind and the impugned order, therefore, deserves
to be quashed and set aside.
3. Except two statements of
the anonymous witnesses, there is no material on record which shows
that the petitioner-detenu is carrying out illegal activities of
selling 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 orders are passed on the basis
of the statements of such witnesses fall under the maintenance of
ýSlaw and orderýý and not ýSpublic orderýý.
4. Applying
the ratio of the above decisions, 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 a public 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. No affidavit-in-reply is filed by the learned AGP on behalf
of the respondent-detaining authority controverting the averments
made in the petition. ..
5. I am fortified in my view
by the decision taken by this court in the case of Sandip
Omprakash Gupta v. State of Gujarat (2004 (1) GLR 865) that
solitary incident of violation of prohibition law, normally would not
be a problem to the maintenance of public order and for such solitary
offence, no person can be detained under the Act.
6. In the result, this Special
Civil Application is allowed. The impugned order of detention dated
28.11.2007 passed by the Commissioner of Police, Ahmedabad 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.
[M.D.
SHAH, J.]
msp