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SCA/12326/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12326 of 2009
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 ?
=========================================================
RAJENDRASING
PAHADSING SOLANKI - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
DJ PANCHAL for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 - 2.
MR
KL PANDYA, AGP for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 24/02/2010
ORAL
JUDGMENT
1. Heard
learned advocate for the petitioner and learned AGP for the
respondents.
2. The
petitioner-detenue has preferred this petition, under Article 226 of
the Constitution of India, for appropriate writ, order or direction
for quashing and setting aside the impugned order dated 29.9.2009
passed by the respondent No.2-Commissioner of Police, Surat City, in
exercise of power under sub-section(1) of Section (3) of the Gujarat
Prevention of Anti Social Activities Act, 1985 ( PASA Act for
short) whereby the detenue has been detained as a bootlegger .
In pursuance of the said impugned order, the detenue is detained in
Jail, Rajkot on 29.9.2009.
3. Along
with the detention order, the petitioner detenu has been supplied
with the grounds of detention. From the grounds of detention, it
appears that only one offence being Prohibition III-CR No.338 of 2009
under the provisions of Section 66(1)B, 65AE, 81, 98, 99, 116(1)B and
83 under the Bombay Prohibition Act was registered with Umra Police
Station wherein a quantity of total 750 mls bottles of foreign
liquor was found from the possession of the detenue. On the basis of
registration of this case, the detaining authority held that the
present detenue was carrying on activities of selling liquor which is
harmful to the health of the public. It is held by the detaining
authority that as the detenue is indulged in illegal activities, it
is required to restrain the detenu 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 detenue can, by no stretch of imagination, 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 arrived at by the detaining authority is
vitiated on account of non-application of mind and the impugned
order, therefore, deserves to be quashed and set aside.
4. Except
the statements of some anonymous witnesses, there is no material on
record which shows that the petitioner-detenue is carrying on
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 order passed on the basis of the
statements of the witnesses falls under the maintenance of law and
order and not public order .
5. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenue, 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 would not fall within the
category of threat to 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.
6. The
petition is allowed. The impugned order of detention dated 29.9.2009
passed 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.
(M.D.Shah,
J.)
pathan
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