Gujarat High Court Case Information System
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SCA/8095/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8095 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================
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 ?
=========================================
SUHAG
KANTILAL GHIYAD - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=========================================
Appearance :
MR
BHAVIN S RAIYANI for Petitioner(s) : 1,
RULE SERVED BY DS for
Respondent(s) : 1 - 2.
MR. L.B.DABHI, AGP for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20/10/2010
ORAL
JUDGMENT
The
Petitioner – detenue has filed the present Petition under
Article 226 of the Constitution of India, challenging the detention
order dated 3.7.2010 (executed on 4.7.2010), passed by the
Respondent – Police Commissioner, Rajkot City, by exercising the
powers conferred under sub-section (2) of Section 3 of the Gujarat
Prevention of Anti Social Activities Act, 1985 (“PASA Act”,
for short). The detenue is branded as “bootlegger”.
Heard Mr.
Bhavin S. Raiyani learned Advocate the Petitioner and Mr.L.B.Dabhi,
learned AGP for the Respondents. Affidavit in Reply of Respondent –
Commissioner of Police, Rajkot City, tendered today, shall be taken
on record, and has been considered.
The
Petitioner came to be detained as “bootlegger” on his
involvement in one offence arising under the Bombay Prohibition Act.
It
has been submitted by the learned Counsel for the Petitioner that it
is a settled legal position that on registration of one offence, no
order of detention could have been passed, as the Petitioner 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.
Per
contra, Mr.L.B.Dabhi, learned AGP representing the Respondents
supported the detention order dated 3.7.2010 passed by the
Respondent – Commissioner of Police, Rajkot City and submitted
that before passing the detention order, the detaining authority
took into consideration all the relevant papers, and after
subjective satisfaction, the detention order is passed, and thus the
detention order is legal and proper, and no interference in the said
order is warranted, and consequently, the petition deserves
dismissal.
I have
gone through the grounds of detention and considered the submissions
advanced on behalf of both the sides.
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.
Except the
general statement, there is no material on record which shows that
the detenu is carrying on illegal activities of selling liquor or
is engaged in such activity, 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”.
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.
In the
result, this petition is allowed. The impugned order of detention
dated 3.7.2010 passed by the Respondent – Police Commissioner,
Rajkot 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.
(J.C.Upadhyaya,
J.)
Jayanti*
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