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SCA/8063/2011 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8063 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================================
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 ?
=========================================================
SIMANCHAL
BANVALI SHAHU - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AR SHAIKH for
Petitioner(s) : 1,
MR MAULIK NANAVATI, AGP for Respondent(s) : 1,
3,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 09/09/2011
ORAL
JUDGMENT
1. By
filing present petition the petitioner – detenu under Article
226 of the Constitution of India, the petitioner has prayed to quash
and set aside the order of detention dated 02.5.2011 passed by the
respondent No.2 – Police Commissioner, Vadodara, in exercise of
power under sub-section (2) of Section 3 of the Gujarat Prevention of
Anti Social Activities Act, 1985 (for short “PASA Act”).
The detenue is branded as “bootlegger”.
2. Heard
the learned Advocate for the petitioner and learned AGP Mr. Nanavati
for the respondents. No Affidavit in reply is filed by the
respondents controverting the averments made by the petitioner.
3. The
petitioner came to be detained as “bootlegger” on his
involvement in the offence being Prohibition CR No.292 of 2011,
registered with Makarpura Police Station, Vadodara.
4. It
has been submitted by the learned Counsel for the petitioner that it
is a settled legal position that on registration of single solitary
offence, no order of detention could have been passed as petitioner –
detenu cannot be branded as “bootlegger”. It has been
further submitted that the activities of the petitioner cannot be
said to be injurious to the public health or public order. It has
been further submitted by the learned Counsel for the petitioner that
there is gross delay in passing the order of detention as well as
there is gross delay in executing the order of detention.
5. I
have gone through the grounds of detention and considered the
arguments advanced by the learned Counsel for the petitioner as well
as the learned A.G.P.
6. The
Court is of the opinion that there is much substance in the arguments
advanced by learned Counsel for the petitioner. It is seen from the
grounds that a general statement 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
of the detaining authority is vitiated on account of non-application
of mind and the impugned order, therefore, deserves to be quashed and
set aside.
7. Except
the general statement, there is no material on record which shows
that the petitioner – detenue is carrying out illegal
activities of selling liquor which is harmful to the health of the
public. In the case of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI v/s.
POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393,
having considered the decision of the Hon’ble Apex Court in the case
of Ram manohar Lohia v/s. State of Bihar, reported in AIR
1966 SC 740, this Court held that the cases wherein the detention
order are passed on the basis of the statements of such witness fall
under the maintenance of “law and order” and not “public
Order”.
8. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention, the detaining authority must come to a definite
findings 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 a 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, cannot be
sustained and, therefore, it deserves to be quashed and set aside.
9. In
the result, this petition is allowed. The impugned order of detention
dated 02.5.2011 passed by the Police Commissioner, Vadodara City, is
hereby quashed and set aside. The detenu is ordered to be set at
liberty forthwith, if not required in any other case. Rule is made
absolute accordingly. Direct service permitted.
(Z.K.SAIYED,
J.)
sas
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