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SCA/5780/2010 2/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5780 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
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 ?
=========================================================
PERUMAL
@ SHIVA S/O SUPAIYA MUDLIYAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MS
BANNA DUTTA, FOR MR AR SHAIKH
for
Petitioner(s) : 1,
MS VANDANA BHATT, ASSTT GOVERNMENT PLEADER for
Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 13/05/2010
ORAL
JUDGMENT
This
petition has been filed under Article 226 read with Articles 21 and
22(5) of the Constitution of India with a prayer to quash and set
aside order of detention dated 02.03.2010 passed by the Commissioner
of Police, Ahmedabad, in exercise of powers under the provisions of
the Gujarat Prevention of Anti-Social Activities Act, 1985 ( the
Act for short).
The
detenu has been branded as a `bootlegger’, within the meaning of
Section 2(b) of the Act, as he has been found to be involved in
offences under the Bombay Prohibition Act.
While
passing the order of detention dated 02.03.2010, which was executed
on 16.03.2010, the detaining authority has taken into consideration
that two offences under the Bombay Prohibition Act have been
registered against the detenu and that the activities carried on by
him are detrimental to the maintenance of public order, and
prejudicial to public health.
I
have heard Ms.Banna Dutta, learned advocate for Mr.A.R.Shaikh,
learned counsel for the petitioner, Ms.Vandana Bhatt, learned
Assistant Government Pleader, and perused the averments made in the
petition and documents on record.
It
is submitted by the learned counsel for the petitioner that merely
by registration of offences under the Bombay Prohibition Act, it
cannot be said that public order has been disturbed by the
detenu. Moreover, no statements of witnesses to substantiate these
allegations have been recorded by the detaining authority
so as to arrive at a subjective satisfaction that the
activities of the detenu are detrimental to public order and
prejudicial to public health, therefore, the petition may be
allowed.
The
learned Assistant Government Pleader has supported the order of
detention and prayed for dismissal of the petition.
Having
heard the learned counsel for the respective parties and having
perused the averments made in the petition as well as the contents
of the impugned order, and other documents on record, in the
considered view of this Court, in order to arrive at a subjective
satisfaction that the activities alleged to be carried on by the
detenu, namely `bootlegging’, are prejudicial to the maintenance of
public order and prejudicial to public health, the detaining
authority must rely upon cogent and credible evidence, and material
on record. It must be taken into consideration by the detaining
authority that the activities of the detenu, either directly or
indirectly, are likely to cause harm, danger or alarm, or feeling of
insecurity among the general public or a grave danger to life,
property or public health. While undertaking this exercise, the
detaining authority must draw a clear line between cases falling
within the category of breach of law and order, and breach of
public order. In the present case, the said exercise does not seem
to have been done by the detaining authority, as there is nothing on
record to suggest that the activities of the detenu have given rise
to a feeling of alarm in the public or posed a grave danger to
public order or public health. It cannot be said that merely by
registration of two offences under the Bombay Prohibition Act, the
activities of the detenu are causing insecurity, and fear among the
general public or are detrimental to public health or maintenance of
public order.
The
Supreme Court, in Darpan @ Dharban Kumar Sharma v. State of
Tamil Nadu and Ors. (2003)2 SCC 313
has laid down that there should be material on record to show that
the incidence and activities of the detenu are so grave as to
disturb the even tempo of life of the community in the locality, or
disturb the general peace and tranquility, or create a sense of
alarm and insecurity in the locality.
Having
perused the contents of the impugned order of detention and the
documents annexed to the petition, there is no material on record to
indicate that the activities of the detenu fall in this category.
The registration of prohibition cases by itself cannot be considered
to be a breach of public order, and nor is there any material on
record to show that the same has adversely affected the maintenance
of public order.
In
view of the above, the petition is allowed. The impugned order of
detention dated 02.03.2010 passed by the Commissioner of Police,
Ahmedabad, is 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.
(Smt.Abhilasha
Kumari, J.)
(sunil)
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