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SCA/4121/2008 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4121 of 2008
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 ?
=========================================================
SOMABHAI
KANTIBHAI JADEJA THRORAMESHBHAI RAMSINGBHAI RATHOD - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================================
Appearance
:
MR
ANIL S DAVE for
Petitioner(s) : 1,
MR
UR BHATT, AGP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 06/08/2008
ORAL
JUDGMENT
1. Heard
the learned advocate for the petitioner and the learned AGP for the
respondents.
2. The
brother-in-law of the detenue 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
28.11.2007 passed by the respondent No.1-Commissioner of Police,
Ahmedabad City, in exercise of power under sub-section(2) of Section
(3) of the Gujarat Prevention of Anti Social Activities Act, 1985
(?SPASA Act?? for short) whereby the detenue has been detained as a
?Sbootlegger??. In pursuance of the said impugned order, the
detenue is detained in Surat Jail, Surat.
3. From
the grounds of detention, it appears that only one offence being CR
No.5396 of 2007 under the provisions of Sections 66B, 66E and 81
under the Bombay Prohibition Act, was registered with Odhav Police
Station, wherein a quantity of total 146 ltrs. of country made were
found from the possession of the detenue. On the basis of
registration of this case, the detaining authority held that the
present detenue was carrying on activities of selling country made
liquor which is harmful to the health of the public. It is held by
the detaining authority that as the detenue is indulged in illegal
activities, it is required to restrain the detenu from carrying out
further illegal activities, i.e. selling of 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 detenue can, by no stretch of imagination, be said
to be disturbing the ?Spublic 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 ?Slaw and order?? and not ?Spublic 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 petitioner-detenue 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 falls under the maintenance of
?Slaw and order?? and not ?Spublic order??.
5. Applying
the ratio of the above decisions, it is clear that before passing an
order of detention of a detenue, the detaining authority must come
to a definite finding that there is threat to the ?Spublic order??
and it is very clear that the present would not fall within the
category of threat to ?Spublic 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.
6. In
the result, this
Special Civil Application is allowed. The
impugned order of detention dated 28.11.2007 passed by the detaining
authority is hereby quashed and set aside. The detenue is ordered to
be set at liberty forthwith, if not required in any other case. Rule
is made absolute accordingly. Direct service is permitted.
Sreeram.
(M.D.Shah,
J.)
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