Gujarat High Court Case Information System
Print
SCA/14026/2005 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 14026 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S.DAVE
=================================================
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 ?
=================================================
SHARDABEN
W/O SHRAVANBHAI VIHAJI THAKOR - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=================================================
Appearance
:
MR SHASHIKANT S GADE for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1,
3,
GOVERNMENT PLEADER for Respondent(s) :
2,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S.DAVE
Date
: 05/09/2005
ORAL
JUDGMENT
The detenue, who is
detained under the provisions of Gujarat Prevention of Anti-social
Activities Act, 1985 ( for short, ‘the PASA Act’) branded as
‘Bootlegger’ within the meaning of section 2(b) of the PASA Act,
vide order dated 26.05.2005 passed by the Police Commissioner,
Ahmedabad City, has filed this petition under Article 226 of the
Constitution of India to declare the order of detention as illegal,
arbitrary and invalid on the ground that it suffers from
non-application of mind and violative of provisions of Article 22 of
the Constitution of India.
The order of detention
refers to the offences punishable under the provisions of Bombay
Prohibition Act under Sections Sections 65 (e), 66 (b), 85 (1) (3)
and 75(a) which have been registered with different Police Stations
of Ahmedabad City vide different crime registered numbers against
the detenue. According to the detaining authority, the above stated
material is sufficient enough to arrive at the subjective
satisfaction for detaining the detenue under the provisions of PASA
Act. That the activities of the detenue are prejudicial and the same
are likely to result into the disturbance of public health and
public order, and therefore, considering the relevant documents and
materials the detenue was detained in exercise of powers under
Sub-section (2) of Section 3 of the PASA Act. Apart from the crime
registered case, as mentioned in the detention order does not
reflect whether any relevant or specific material is considered by
the detaining authority.
The learned advocate
for the petitioner confined his arguments on the ground that the
alleged offences registered against the detenue cannot be said the
cause of disturbing the public order or public health or in any
circumstances prejudicial and have potential to disturb the even
tempo of public life and/or public health. According to him, no
relevant materials did exist before the detaining authority while
passing the order of detention and the subjective satisfaction
arrived at by the detaining authority therefore vitiated and order
of detention dated 26.05.2005 suffers from vice of non-application
of mind, and therefore, required to be quashed and set aside.
In support of his
arguments he has placed reliance on the decision of the learned
Single Judge of this Court dated 23.03.2004 rendered in Special
Civil Application No.14792 of 2003 in the case of Zarinbibi w/o.
Nazirmohamad Noormohamad Shaikh Vs. Commissioner of Police Baroda
City and submitted that in the above mentioned case also five
offences punishable under the Bombay Prohibition Act 1949 were
registered against the detenue of that case and similar recitals
about disturbance of public order by prejudicial activities of the
petitioner was found in the order of detention. According to him
after considering various decisions reported in AIR 1989 SC 491 in
the case of Piyush Kantilal Mehta Vs. Commissioner of Police and JT
1989 (4) SC 177 and Rashidmiya @ Chhava Ahmedmiya Shaikh Vs. Police
Commissioner, Ahmedabad and another, and the decision of the
Division Bench of this Court dated 22.08.2000 passed in Letters
Patent Appeal No.223/2000 in Special Civil Application No.554 of
2000 the Court has considered the relevant aspects. Therefore,
according to the learned advocate for the petitioner, the ratio laid
down in the above mentioned judgment is squarely applicable in the
facts of the present case. He has submitted that except the offences
mentioned in the order of detention no other criminal activities
attributed to the petitioner and no case of violence disturbing the
public peace or public order is alleged against the detenue.
The learned Assistant
Government Pleader Mrs. H.B.Punani has submitted that the material
relied on by the detaining authority is sufficient enough to invoke
the provisions and to exercise the power under the provisions of
Sub-section 2 of Section 3 of the PASA Act and subjective
satisfaction of the detaining authority arrived at on the basis of
conscious decision cannot be said that the said satisfaction is
dehors the material on record. She has also relied on the decision
of the Supreme Court in the case of Kanuji Zala Vs. State of Gujarat
reported at 1999 (2) GLH 415 in support of her arguments. Therefore,
she has submitted that the order of detention is valid and legal and
no interference is required to be called for under Article 226 of
the Constitution of India.
Having heard, the
learned counsel for the parties and perused the record of the case
including the affidavit in reply and considering the statements of
witnesses, I am of the opinion that the material relied on by the
detaining authority simply registration of offences under the
provisions of Bombay Prohibition Act, 1949 cannot be said to be
disturb even tempo of public life or public order. There is no case
or any other prejudicial activities of the detenue resulting into
large scale violence which may disturb the public health and public
order. In the case before the apex court in the case of K.S.Zala Vs.
State of Gujarat (Supra) there was credible and cogent material
before the detaining authority which was conscious that as a result
of resorting to violence by the petitioner of that case for carrying
on his bootlegging activities, even tempo of public order disturbed
on some occasions. In such circumstances the apex court refused to
interfere with the exercise of power by the detaining authority. It
is pertinent to mention about one more decision of the Division
Bench of this High Court rendered in Letters Patent Appeal No.223 of
2000 in Special Civil Application No.554 of 2000 wherein in Paras-4
and 5 of the said judgment law laid down by the Apex Court in case
of K.S.Zala Vs State of Gujarat is discussed is as under:-
?S
PARA-4:- In this case of K.S.Zala Vs. State of Gujarat (Supra), the
Supreme Court also considered three earlier decisions in the case of
Piyush Kantilal Mehta (Supra); Omprakash (Supra); and Rashidmiya
(Supra) and observed in para 4 that in none of the three cases relied
upon by the learned counsel, the point whether public order can be
said to have been disturbed on the ground that the activity of the
detenue was harmful to the public health arose for consideration and
that the detaining authority has not recorded such satisfaction;
moreover in these three cases the detaining authority has referred to
some incidents of beating but there was no material to show that as a
result thereof even tempo of public order was disturbed, whereas in
the case before the Supreme Court in the case of K.S.Zala Vs. State
of Gujarat (Supra) the detaining authority has specifically stated in
the grounds of detention that selling of liquor by the petitioner and
its consumption by the people of that locality was harmful to their
health. It was also stated that the statements of the witnesses
clearly show that as a result of violence resorted to by the
petitioner even tempo of public life was disturbed in those
localities for some time. That material on record clearly shows that
the members of public of those localities had to run away from there
or to go inside their houses and close their doors.
PARA-5:-
If we examine the present case on the anvil of the test which has
been applied by the Supreme Court in the case of K.S.Zala Vs. State
of Gujarat (Supra), i.e. with regard to the presence of credible
material and as to how the detaining authority has made the mention
against the appellant being an obstruction to the public health and
public order, we find that in the instant case so far as the
statements of the witnesses which were recorded with regard to
unregistered cases, that ground has been rejected by the learned
Single Judge himself. It is , of course, true that after narrating
the authority has mentioned that the activities of the appellant were
an obstacle to the public health and public order, but this bald
observation cannot be taken to be decisive so as to arrive at the
satisfaction that the activities of the petitioner were prejudicial
to the public order or public health and that tempo of public life
was disturbed. No observation made in any part of the judgment can be
read in isolation and bereft the context. The judgment is to be read
as a whole and even the observations which have been made by the
Supreme Court in para 6 of the judgment are to be considered in light
of the earlier observations made in para 5 where presence of credible
material before the detaining authority has been insisted upon. Thus,
litmus test to find out as to whether it is a case of breach of
public order, material has to be there. In the case of K.S.Zala
before the Supreme Court, the detaining authority had also relied
upon the statements of the witnesses so as to show that violence
resorted to by the petitioner in that case had disturbed the even
tempo of public life and the material on record had shown that
members of the public of those localities had to run away from there
and to go inside their houses and to close their houses and to close
their doors. No such fact situation has been mentioned in the present
case and the ground with regard to the statements of the three
witnesses has been rejected by the learned Single Judge himself and
it has been held that there had been violation or infringement of the
petitioner’s right against such statements. In this view of the
matter unregistered cases and with regard to the three incidents the
material germane for the purpose of consideration of the threat to
the public health and public order. Thus, the only material which
remains is the registered criminal cases and that by itself cannot be
said to be a material for the purpose of holding that the appellant’s
activities had become a threat to the public order and public health.
Necessary material in this regard is totally wanting in the body of
the detention order itself. In large number of cases, the Supreme
Court has considered that involvement in bootlegging activities even
if coupled with violence does not amount to threat to public order or
public health. The mere mention of allegations unless they are
supported by any material cannot be said to be material germane for
the purpose of arriving at the satisfaction with regard to breach of
public order or public health and we find that after giving
particulars of criminal cases, the detaining authority by including
certain allegations, not supported by any credible material has
simply observed that the appellant’s activities were on obstacle to
the public health and public order. In this view of the matter
keeping in view the observations made by the Supreme Court in the
case of K.S.Zala Vs. State of Gujarat (Supra) itself in paras 4 and
5, we do not find that it can be held to be a case of breach of
public health and public order. Learned counsel for the appellant has
also argued several other points before us, but we do not find it
necessary to go into those grounds. It may be mentioned that it was
not a case of breach of public order or public health and it was not
argued before the learned Single Judge. Even if that be so, in such
matters, the point which arises on the face of the facts of the case
by the body of the order itself , which does not require further
investigation of the facts can certainly be allowed to be raised and
we allow learned counsel for the appellant to raise this point and
find that this point is not without substance. The impugned order
passed by the learned single judge upholding the detention order
therefore, cannot be said to be in consonance with the settled
position of law. The detention order deserves to be quashed and set
aside on this ground alone. We therefore, do not go into other
grounds which were raised on behalf of the appellants.??
7.
In the present case, it is evident from the record that statements
of anonymous witness are recorded by the detaining authority which
can even a remotely connect the prejudicial activities of the detenue
resulting into disturbance of the public order or public health as
rightly held by the Division Bench in the above case i.e. Letters
Patent Appeal No.223 of 2000 (Supra) that only material which remains
is the registered criminal case and that by itself cannot be said to
be a material for the purpose of holding that the detenue’s activity
had become a threat to the public order or public health. Necessary
material in this regard is totally warranting in the body of the
detention order. In such number of cases the Supreme Court has
considered that involvement in bootlegging activities even if couple
with violence does not amount to dangerous the mere mention of
allegations unless they are supported by any material cannot be said
to be a material germane for the purpose of arriving at the
subjective satisfaction with regard to the breach of public order or
public health and we find that detaining authority by including
certain allegations has simply observed that the appellant’s
activities were an obstacle to the public health and public order. ‘
In
view of the above, in the present case no other credible material or
cogent material did exist before the detaining authority for arriving
at the subjective satisfaction that the activities of the detenue are
prejudicial to the public order or public health, and, therefore, the
order of detention is passed contrary to the provisions of the
settled law and therefore, required to be quashed and set aside.
8.
In the circumstances, the order of detention dated 26.05.2005
passed by the respondent no.1 herein, is hereby quashed and set
aside. The detenue Shardaben W/o. Shravanbhai Vihaji Thakor, is
therefore ordered to be set at liberty forthwith, if not required
in any other offence by any other authority.
9.
Rule is made absolute to the aforesaid extent with no order as to
costs. Direct Service is permitted.
(ANANT
S. DAVE, J.)amit
Top