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SCA/478220/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4782 of 2009
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
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 ?
=========================================
SURESHBHAI
KAMABHAI MORI THROUGH HIS BROTHER - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================
Appearance
:
MR BM MANGUKIYA and MS BELA A
PRAJAPATI for the Petitioner.
Mr. M.R.Mengdey, Assistant
GOVERNMENT PLEADER for the
Respondents.
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 06/08/2009
ORAL
JUDGMENT
1. This
petition is directed against the order of detention dated 6th March,
2009 passed by the District Magistrate, Bhavnagar in exercise of
powers under sub-section (2) of section 3 of the Gujarat Prevention
of Anti-social Activities Act, 1985 (The PASA Act), whereby the
petitioner has been detained as a bootlegger.
2. Ms.
Bela Prajapati, learned advocate for the petitioner has invited
attention to the impugned order of detention to point out that the
detaining authority has only relied upon four offences registered
against the petitioner under the provisions of the Bombay Prohibition
Act to arrive at a subjective satisfaction that the activities of the
petitioner are prejudicial to the maintenance of public health and
public order. It is submitted that except for the aforesaid three
offences, there is no material for the detaining authority to arrive
at a subjective satisfaction that the activities of the petitioner
are prejudicial to the maintenance of public order. It is contended
that it is settled legal position as held by the Apex Court in a
catena of decisions that the activities of bootlegging per se cannot
be said to be prejudicial to maintenance of public health and public
order.
3. On
the other hand, Mr. M.R.Mengdey, learned Assistant Government Pleader
has submitted that the detaining authority has applied his mind to
the material on record and has arrived at a subjective satisfaction
that the activities of the petitioner are prejudicial to maintenance
of public health and public order and as such, no case is made out
for intervention by this Court.
4. A
perusal of the impugned order of detention shows that the detaining
authority has referred to four offences under the provisions of the
Bombay Prohibition Act registered against the petitioner. Thereafter,
the detaining authority has observed that the petitioner is carrying
on anti-social activities and selling foreign liquor and that his
activities are prejudicial to the maintenance of public health and
public order. The detaining authority has thereafter found that
taking steps under section 93 of the Bombay Prohibition Act or powers
of externment under Bombay Police Act are not sufficient to prevent
the petitioner from carrying on anti-social activities. The
petitioner being a bootlegger within the meaning of section 2(b) of
the PASA Act, is required to be detained in public interest.
5. As
can be seen from the impugned order of detention, though the
detaining authority has recorded that the activities of the
petitioner are prejudicial to the maintenance of public health and
public order, the order does not indicate as to on what basis the
detaining authority has arrived at such a conclusion. In the
circumstances, it is apparent that subjective satisfaction of the
detaining authority is not based upon any material on record.
6. It
is settled legal position as held by the Supreme Court in the case of
Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City
and another, 1989 Supp (1) SCC 322 that in order that an
activity may be said to affect adversely the maintenance of public
order, there must be material to show that there has been a feeling
of insecurity among the general public. If an act of a person creates
panic or fear in the minds of the members of the public upsetting the
even tempo of life of the community, such act must be said to have a
direct bearing on the question of maintenance of public order. The
commission of an offence will not necessarily come within the purview
of public order . On the facts of the said case the petitioner
therein was detained on the ground that he was a bootlegger and that
some incidents of beating by the petitioner had taken place, as
alleged by witnesses. According to the Supreme Court the said
incidents did not have any bearing on the maintenance of public
order. It was further held that:
The petitioner
may be punished for the alleged offences committed by him but,
surely, such acts constituting the offences cannot be said to have
affected the even tempo of life of the community. It may be that the
petitioner is a bootlegger within the meaning of Section 2(b) of the
Act, but merely because he is a bootlegger he cannot be preventively
detained under the provisions of the Act unless, as laid down in
sub-section (4) of section 3 of the Act, his activities as bootlegger
affect or are likely to affect adversely the maintenance of public
order. We have carefully considered the offences alleged against the
petitioner in the order of detention and also the allegations made by
the witnesses and, in our opinion, these offences or the allegations
cannot be said to have created any feeling of insecurity or panic or
terror among the members of the public of the area in question giving
rise to the question of maintenance of public order. The order of
detention cannot, therefore, be upheld.
7. A
Division Bench of this Court vide judgment and order dated 22nd
August, 2000 rendered in the case of Ashokbhai Balabhai Makwana
v. State of Gujarat, Letters Patent Appeal No.223 of 2000,
after considering the decision of the Supreme Court in the case of
Kanuji S. Zala v. State of Gujarat, 1999 (2) GLH 415
held that a bald observation that the activities of the petitioner
were an obstacle to public health and public order 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. The Court further
held that the litmus test to find out whether it is a case of breach
of public order or breach of public health is that credible material
has to be there. In the facts of the said case, apart from the
allegation that the petitioner was a bootlegger based on some
registered cases, there were some unregistered cases and statements
of anonymous witnesses against the petitioner therein. The Court
held thus:
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.
8. On
the facts of the present case a perusal of the detention order shows
that after giving the particulars of the criminal cases, the
detaining authority has simply observed that the petitioner s
activities were an obstacle to the public health and public order
without there being any credible material in support thereof. Thus,
there is no material on record except the six cases registered
against the petitioner under the provisions of the Bombay Prohibition
Act. As held by the Supreme Court as well as this Court in the
decisions cited hereinabove, mere registration of criminal cases
cannot by itself be said to be a material for holding that the
petitioner s activities have become a threat to public order or
public health.
9. The
decision of this court in case of Salam Abdul Hanifshaibhai
Through Wife Hajirabibi Salam vs. (The) District Magistrate and Ors.
[2007 (3) G.L.H. Page 131] on which reliance has been placed
by the learned Assistant Government Pleader will not be of any
assistance to him as in the facts of the said case, it was found that
the detaining authority had arrived at the satisfaction that the
petitioner therein was a bootlegger and his activities were
prejudicial to the maintenance of public order as well as about the
likelihood of his activities causing widespread danger to the public
health by the scale of his operations which were all substantiated by
credible and cogent material. In the present case, there is nothing
to show that the activities of the petitioner were carried out on a
large scale nor is there any credible or cogent material to
substantiate the satisfaction arrived at by the detaining authority
that the activities of the petitioner are prejudicial to the
maintenance of public order or public health. In the circumstances,
the subjective satisfaction recorded by the detaining authority being
based on no evidence, stands vitiated and as such the order of
detention cannot be sustained.
10.
For the foregoing reasons, the petition succeeds and is accordingly
allowed. The impugned order of detention dated 6th 2009 passed by
the District Magistrate, Bhavnagar is hereby quashed and set aside
and the detenu Sureshbhai Kamabhai Mori is hereby ordered to be set
at liberty forthwith, if not required to be detained in any other
case. Rule is made absolute. Direct service is permitted.
(HARSHA
DEVANI, J.)
***darji
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