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SCA/8325/2007 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8325 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Sd/-
=========================================================
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 ?
1 to 5 NO
=========================================================
SAMIR
@ RAKESHBHAI S/O ISHWARLAL PARMAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
KAMAL M SOJITRA for
Petitioner(s) : 1,
MR DIPEN DESAI ASSTT GOVERNMENT PLEADER for
Respondent(s) :
1-3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
Date
: 13/09/2007
ORAL
JUDGMENT
:
1. By
the present petition under Article 226 of the Constitution,
petitioner has sought the relief of order dated 25.01.2007 of his
detention being set aside. That impugned order dated 25.01.2007 is
issued by Police Commissioner, Surat in exercise of his powers
conferred under the provisions of section 3 of the Gujarat Prevention
of Anti-Social Activities Act, 1985 (“PASA” for short) on
the basis that the petitioner was found to be repeatedly indulging in
anti-social activity of bootlegging and an offence being
III-C.R.No.927 of 2006 under the Prohibition Act was registered on
27.12.2006 against the petitioner in Limbayat Police Station of
Surat. According to the grounds of detention supplied with the
impugned order, even as the aforesaid offence was being investigated,
other actions under the Prohibition Act were not possible and alcohol
being injurious to health, there was likelihood of danger to public
health on account of consumption of illicit liquor in which the
petitioner was dealing. It is further stated that possibility of the
petitioner continuing in anti-social activities could not be denied
and hence it was found to be necessary to detain the petitioner after
considering the documents and statements which were relied upon and
supplied to the petitioner.
2. Even
as the present petition was admitted on 29.03.2007 and an
affidavit-in-reply of the detaining authority was ready and executed
on 25.5.2007, it was submitted to this court and copy thereof
supplied to the petitioner only on 11.9.2007. It is stated in that
affidavit, inter alia, that prima facie involvement of
the petitioner was established in the offence registered against him.
It is further stated: ” Therefore, after carefully
considering all the relevant materials placed before me, the facts
and circumstances of the case as well as the legal provisions
applicable to the facts of the case, as I was subjectively satisfied
that the detenu is a bootlegger as defined u/s. 2 (b) of the PASA Act
and his anti-social activities have the potential to disturb the
maintenance of public order and therefore it is necessary to detain
him immediately with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order, I have passed the
order of detention against the detenu and the same is legal, valid
and proper.”
3. In the above facts,
it was sought to be argued on behalf of the respondents that danger
to public health caused by the activity of bootlegging by the
petitioner substantiated the assumption of likelihood of public order
being adversely affected and, for that reason, the subjective
satisfaction about the necessity of preventing the petitioner from
acting in any manner prejudicial to the maintenance of public order
and the impugned order directing his detention were legal and
justified.
4. As
held by this court in Amarbhai Kanjibhai Nayak v. Commissioner
of Police, Ahmedabad City & Ors. [1993 (3) G.L.R. 2703]
and in Sohanlal Surajaram Visnoi v. State of Gujarat [2004
(2) G.L.R. 1051], solitary incident of violation of
prohibition law, normally, without anything more, would not be a
problem to the maintenance of public order and, for such solitary
incident, no person can be detained under the Act. It was also seen
from analysis of the provisions of sub-section (4) of section 3 and
the Explanation appended thereto that the presumption of likelihood
of public order being adversely affected could arise, if danger were
caused to life or public health, but such danger has to be grave or
widespread for the mandatory presumption of likelihood of public
order being adversely affected. In the facts of the present case,
nothing from the material on record could substantiate or justify the
presumption of grave or widespread danger to life or public health
and hence, the presumption of likelihood of public order being
adversely affected could not have been legally availed by the
detaining authority for the purpose of arriving at a subjective
satisfaction.
5. Therefore,
in the facts and circumstances, the impugned order dated 25.01.2007
of preventive detention is found and held to be unsustainable in law
and set aside with the direction that the petitioner shall be set at
liberty forthwith unless required to be detained in connection with
any other case. Rule is made absolute accordingly. Direct service
is permitted.
Sd/-
(
D.H.Waghela, J.)
(KMG
Thilake)
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