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SCA/20594/2006 2/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 20594 of 2006
=========================================================
RAMESHBHAI
ALIAS DILIP BABUBHAI THAKORE - Petitioner(s)
Versus
THE
COMMISSIONER OF POLICE VADODARA CITY & 2 - Respondent(s)
=========================================================
Appearance
:
MS
DR KACHHAVAH for
Petitioner(s) : 1,MR KAMLESH KACHHAVAH for Petitioner(s) : 1,
Ms
Hansa Punani AGPGOVERNMENT PLEADER for Respondent(s) : 1,
RULE
SERVED BY DS for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 28/12/2006
ORAL
ORDER
1. The
detenu
has filed this petition challenging the order of detention dated
8.9.06 passed by Commissioner of Police, Vadodara under the
provisions of sub-Section (2) of Section 3 of the Gujarat Prevention
of Anti-social Activities Act, 1985 (hereinafter referred to as the
‘PASA Act’).
2. learned
Advocate for the petitioner has invited my attention to the order of
detention dated 8.9.06 by which detenu was arrested as well as to the
grounds supplied by the detaining authority, therein. As the grounds
of detention, one criminal case is shown registered against the
detenu.
2.1 He has
further submitted that in the order of detention it was stated that
the detenu is carrying on anti-social activities and on the basis of
solitary offence of ‘bootlegging’ registered against the detenu, he
was termed as ‘Bootlegger’ within the meaning of Section 2(b)of the
P.A.S.A. Act. It was also stated in the impugned order that as the
said bootlegging activities of the detenu are dangerous and affecting
maintenance of ‘public order’ and ‘public health’, order of detention
has been passed against him.
2.2 He
has further submitted that on the basis of only one criminal case
registered against the detenu, he cannot be termed as ‘Bootlegger’.
In support of his case he has placed reliance
on a decision of this Court passed in the case of ?SSohanlal
Surajram Visnoi Vs. State of Gujarat and Ors.??
reported in 2004(2)GLR 1051 wherein it was held as under,
?SIt
may be noted that the contention advanced on behalf of the
petitioners that no preventive detention order can be recorded in a
solitary incident or instance or offence cannot be accepted in toto.
The detaining authority can pass the order of detention even on
the basis of a solitary incident or instance, provided there is
justifiable subjective satisfaction on objective material and
consideration that such incident or offence is likely to create
disturbance of ?SPublic Order??. Emphasis is laid on ?SPublic
Order?? and not on ?SLaw and Order?? which belongs to the
realm of general law. After having taken into account the statutory
definitions of the persons branded as ?Sbootlegger?? or ?Sdangerous
person?? under the P.A.S.A. Act, and detailed factual matrix of each
case, the solitary incident or instance in question in these
petitions has not been shown or spelt out from the record as
affecting the ?SPublic Order?? or likely to create public
disturbance or prejudicial or adverse to the maintenance of ?SPublic
Order??, and therefore, the continued detention of the detenus in
each case has not been shown to be justifiable, …??
2.3 He
has further placed reliance on a decision
of this Court passed in the case of ?? Sandip Omprakash Gupta
v. State of Gujarat & Ors??
reported in 2004(1)GLR 864 wherein it was held as under,
?SThere
is only one registered offence under the Bombay Prohibition Act,
which obviously, cannot disturb the peace of public tempo or place of
public order, and therefore, it canot be considered to be prejudicial
activities in any manner which may not prompt to say, that it would
have disturbed the public peace or place of public order in the
society. The allegation against the petitioner that he is selling
liquor in the society, but there is nothing compelling to the persons
in the society to buy liquor from the petitioner. Except this, no
other activity which could disturb the public peace or the public
order in the society is noticed or recorded against the petitioner.
Therefore, such activity which is said to be have been carrying out
by the petitioner, can normally be covered by the ordinary law to
prevent him and it cannot be considered beyond capacity of ordinary
law to deal with him.??
2.4 Hence, he
has submitted that the impugned order deserves to be quashed and set
aside.
3. On the
contrary, learned A.G.P. for respondent-detaining Authority has
supported the order of detention as well as grounds stated therein
and has contended that the Authority has passed the impugned order
after taking into consideration all the facts and circumstances of
the case, and hence, no case is made out calling for interference of
this Court.
4. As a
result of hearing and perusal of the record it appears that in this
case the only material is one criminal case registered against the
detenu and on the basis of that it cannot be said that the activity
of the detenu has become a threat to the maintenance of ‘public
order’ and ‘public health’. The offence committed by the detenu
pertains to prohibition to which I have already made reference in my
earlier part of the judgment. Mere involvement of detenu in
bootlegging activities may not amount to dangerous activity by
petitioner-detenu and mere mention of them unless supported by any
evidence cannot be said to be material for the purpose of arriving at
subjective satisfaction that the activity of the detenu is
prejudicial to the maintenance of ‘public order’ and ‘public health’.
4.1 I am,
therefore, of the view that the detaining authority has passed the
order of detention without there being any credible or cogent
material on record in this behalf. I have considered factual and
legal aspects emerging from the record of the petition and considered
the rival submissions and the facts of the case and also considered
the judgment of this Court in the case of Sohanlal
Sujaram Visnoi (Supra) and
Sandip Gupta(supra). In view of the facts
and circumstances of the present case and also ratio laid down in the
cases mentioned above, the order of detention cannot be sustained and
it deserves to be quashed and set aside.
5. In the
result, this petition is allowed. The order of detention dated 8.9.06
passed by Commissioner of Police, Vadodara is hereby quashed and set
aside. The detenu is, therefore, ordered to be set at liberty
forthwith, if not required in connection with any other case by the
Authority. Rule is made absolute. Direct service is permitted.
(K.S.
Jhaveri,J.)
Mary//
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