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SCA/9698/2009 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9698 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 ?
=========================================================
RANJITSINH
@ RANU SAMATBHAI BHATI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
M/S
THAKKAR ASSOC. for
Petitioner(s) : 1,
MR LB DABHI, AGP for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 28/01/2010
ORAL
JUDGMENT
1. Heard
learned advocate for the petitioner and learned AGP for the
respondents.
2. The
detenu 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 25.7.2009
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 ( PASA Act for
short) whereby the detenu has been detained as a Bootlegger . In
pursuance of the said impugned order, the detenu is detained in
Sub-Jail, Godhra.
3. From
the grounds of detention, it appears that two offences being III-CR
Nos.5149 of 2009 and 5114 of 2009 have been registered against the
detenu at Junagadh City B Division Police Station, under the
provisions of the Bombay Prohibition Act, wherein it is alleged that
a total quantity of 875 bottles of foreign liquor was found from the
possession of the detenu. On the basis of registration of these
cases, the detaining authority held that the present detenu 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 detenu is indulged in illegal activities, it is
required to restrain the detenu from carrying on further illegal
activities, i.e. selling 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 detenu
can, by no stretch of imagination, can 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 detenu 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 fall 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 detenu, 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 case 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,
it cannot be sustained and, therefore, it deserves to be quashed and
set aside.
6. In
the result, this petition is allowed. The impugned order dated
25.7.2009 passed by respondent District Magistrate, Junagadh is
hereby quashed and set aside. The detenu is ordered to be set at
liberty forthwith, if presence of detenu is not required in any other
offence. Rule is made absolute accordingly. D.S.is permitted.
(M.D.Shah, J.)
Sreeram.
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