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SCA/10204/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10204 of 2009
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 ?
=========================================================
TEJABHAI
MAVJIBHAI PARMAR THRO. SON IN LAW ABHAYBHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
BM MANGUKIYA for
Petitioner(s) : 1, MS BELA A PRAJAPATI
for Petitioner(s) : 1,
MR LB DABHI, AGP for Respondent(s) :
1-3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 01/02/2010
ORAL JUDGMENT
Leave
to amend. Amendment be carried out forthwith.
The
petitioner has been detained under the provisions of Gujarat
Prevention of Anti-Social Activities Act, 1985 (hereinafter
referred to as `the Act of 1985′) by the order dated 10-9-2009
passed by the District Magistrate, Bhavnagar District, Bhavnagar,
and he has been declared as bootlegger.
Heard
learned advocate for the petitioner and the learned AGP for the
State. Also perused the record.
It
appears that one offence being Gadhda Police Station Crime Register
No.118 of 2009 dated 13-8-2009 under the prohibition Act has been
registered against the detenue alleging that 41 bottles of foreign
liquor costing Rs.12,300/- were found from the possession of the
detenu. On the basis of registration of the said case, the detaining
authority held that since the said activities of selling country
made liquor of the present detenu were harmful to the health of the
public, to restrain him from carrying further illegal activities, he
has been detained. It appears from the order that the activities of
the detenu cannot be said to be disturbing the public order .
It also appears from the order passed by the detaining authority
that 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 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.
Except
the statements of some anonymous witnesses, there is no material on
record which shows that the detenu 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 case wherein the detention order passed on the basis
of the statements of the witnesses 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 of a detenu, the detaining authority must come to
a definite finding 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 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, it cannot be sustained and, therefore, it deserves to be
quashed and set aside.
The
petition is allowed. The impugned order of detention dated 10-9-2009
passed by the District Magistrate, Bhavnagar District, Bhavnagar,
passed against the detenu 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 is permitted.
(M.D.SHAH,J.)
radhan
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