Gujarat High Court Case Information System
Print
SCA/11096/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11096 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================
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 ?
=========================================
PRAVIN
ALIAS BAKUL PRANLAL MEHTA THROUGH HARISH SHANKARBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance
:
MR AMRISH K
PANDYA for
Petitioner(s) : 1,
MR LB DABHI, LD. ASST. GOVERNMENT PLEADER for
Respondent(s) : 1, 3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 25/10/2010
ORAL
JUDGMENT
The
petitioner-Harish Shankarbhai Trivedi filed the present petition
under Article 226 of the Constitution of India, challenging the
detention of his uncle-detenu Pravin alias Bakul Pranlal Mehta
pursuant to the detention order dated 03rd July, 2010,
which was executed on 15th July, 2010, passed by the
respondent Police Commissioner, Rajkot City, by exercising the
powers conferred under sub-section (2) of Section 3 of the Gujarat
Prevention of Anti Social Activities Act, 1985 ( PASA Act , for
short). The detenu is branded as bootlegger .
Heard
Mr.Amrish K. Pandya, learned Advocate for the petitioner and Mr.L.B.
Dabhi, learned Assistant Government Pleader for the respondents.
The
detenu came to be detained as bootlegger on his involvement in
one offence arising under the Bombay Prohibition Act.
It
has been submitted by the learned counsel for the petitioner that it
is a settled legal position that on registration of one offence, no
order of detention could have been passed, as the detenu cannot be
branded as bootlegger . It has been further submitted that the
activities of the detenu cannot be said to be injurious to the
public health or public order. It has been further submitted by the
learned counsel for the petitioner that there is gross delay in
passing the order of detention as well as gross delay in executing
the order of detention.
Per
contra, Mr.L.B. Dabhi, learned Assistant Government Pleader
representing the respondents supported the detention order dated
03rd July, 2010 passed by respondent Commissioner of
Police, Rajkot City and submitted that before passing the detention
order, the detention authority took into consideration all the
relevant papers and after subjective satisfaction, the detention
order is passed and thus the detention order is legal and proper and
no interference in the said order is warranted and consequently the
petition deserves dismissal.
I
have gone through the grounds of detention and considered the
submissions advanced on behalf of both the sides.
The
Court is of the opinion that there is much substance in the
arguments advanced by learned counsel for the petitioner. It is seen
from the grounds that a general statement 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.
Except
the general statement, there is no material on record which shows
that the detenu is carrying on illegal activities of selling liquor
or is engaged in such activity, which is harmful to the health of
the public. In the case of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI
v/s. POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393,
having considered the decision of the Hon’ble Apex Court in the case
of Ram manohar Lohia v/s. State of Bihar, reported in 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 law and order and not
public Order .
Applying
the ratio of the above decisions, it is clear that before passing an
order of detention, the detaining authority must come to a definite
findings 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.
In
the result, this petition is allowed. The
impugned order of detention dated 03rd
July, 2010 passed by the respondent-Commissioner of Police, Rajkot
City, is hereby quashed and set aside. The detenu-Pravin alias Bakul
Pranlal Mehta is ordered to be set at liberty forthwith, if not
required in any other case. Rule is made absolute accordingly.
Direct Service
is permitted.
(J.C.Upadhyaya,
J)
Anup
Top