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SCA/9173/2008 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9173 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 ?
=========================================================
RAMESH
KANJIBHAI JETHVA THRO DEVIBEN RAMESHBHAI JETHA W/O. - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
M/S.VYAS
ASSOCIATES for
Petitioner(s) : 1,
MR
KP RAVAL, AGP for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 20/08/2008
ORAL
JUDGMENT
1. Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. The
wife of 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
26.2.2008 passed by the respondent No.2-District Magistrate,
Junagadh, in exercise of power under sub-section(2) of Section (3) of
the Gujarat Prevention of Anti Social Activities Act, 1985 (?SPASA
Act?? for short) whereby the detenue has been detained as a
?Sbootlegger??. In pursuance of the said impugned order, the
detenue is detained in Sub-Jail, Mehsana.
3. From
the grounds of detention, it appears that only one offence being
III-CR No.5001 of 2008 under the provisions of Section 66B, 65A,E, 81
and 116(2) under the Bombay Prohibition Act, was registered with
Somnath Marine Police Station, wherein a quantity of total 2364
bottles of foreign liquor were 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 country made 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
offences 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 ?Spublic 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 ?Slaw and order?? and not ?Spublic
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 country made 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
?Slaw and order?? and not ?Spublic 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 ?Spublic order??
and it is very clear that the present would not fall within the
category of threat to ?Spublic 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. In
the result, this
Special Civil Application is allowed. The
impugned order of detention dated 26.2.2008 passed by the detaining
authority is hereby quashed and set aside. The detenue is ordered to
be set at liberty forthwith, if not required in any other case. Rule
is made absolute accordingly. Direct service is permitted.
Sreeram.
(M.D.Shah,
J.)
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