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SCA/21/2010 2/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 21 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
=========================================================
DHARMESHKUMAR
@ DHAMO S/O KIRTIKUMAR AMBALAL SHAH
Versus
STATE
OF GUJARAT & OTHERS
=========================================================
Appearance :
MR
AR SHAIKH for Petitioner.
MS MINI NAIR, ASST. GOVERNMENT PLEADER
for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 07/05/2010
ORAL
JUDGMENT
By
filing this writ petition under Article 227 of the Constitution of
India, the detenu has challenged the order of detention No.
PCB/DTN/PASA/644/2009 dated 13.10.2009 passed by the Commissioner of
Police, Ahmedabad, respondent No. 2, in exercise of powers under
sub-section (2) of section 3 of the Gujarat Prevention of Anti Social
Activities Act, 1985 [hereinafter referred to as the PASA Act]
detaining the detenu as a bootlegger, as being illegal, invalid,
arbitrary, void ab-initio and suffers from total non-application of
mind and also in violation of the provisions of Articles 14, 21 and
22 of the Constitution of India.
Learned
advocate for the petitioner, Mr. A.R. Shaikh submitted that the
grounds of detention do not indicate any satisfaction recorded by the
detaining authority that the activities of the detenu are detrimental
to public order , and, therefore, the detention order is bad and
illegal. He further submitted that on behalf of the detenu, a
representation dated 21.12.2009 was made, but the same has not been
considered either by the detaining authority or by the State
Government and therefore the continued detention of the detenu is bad
in law.
Ms.
Mini Nair, learned AGP submitted that the detention order is just and
proper and detaining authority has passed the order after considering
all relevant aspects of the matter, and the same needs no
interference.
Heard
learned counsel appearing for both the sides. I have also perused the
records available in the compilation.
It
appears that on the basis of a solitary case, viz. D.C.B. Police
Station Prohibition C.R. No. 5023 of 2009 dated 08.10.2009 for 85
bottles of foreign liquor against the detenu, the detaining authority
held that the said activities of selling liquor of the present
detenu were harmful to the health of the public, and to restrain from
carrying further illegal activities, the detenu has been detained.
On
behalf of the detenu, a representation dated 21.12.2009 was made to
the detaining authority. Copy of the same is produced at Annexure
‘D’, pages 19-21 of the present compilation. In paragraph 12 of the
affidavit in reply filed by the detaining authority, it is stated
that through the representation was received on 23.12.2009, as the
order of detention was already approved by the State Government on
16.10.2009, the representation was forwarded to the State Government
and to the Advisory Board. The State has not filed any reply
clarifying whether the representation was considered by it or not. It
thus appears that the representation made by the detenu is not
considered by either the detaining authority or the State.
That
apart, except the statements of some anonymous witnesses, there is no
material on record which shows that the detenu is carrying on
activities of selling liquor which is harmful to the health of the
public. In the case of Collector and DIST. MAGISTRATE V/S. SULTAN
reported in AIR 2008 SC 2096 the Apex Court has distinguished
between public order and law and order and held that the
distinction between the areas of ‘law and order’ and ‘public order’
is one of the degree and extent of the reach of the act in question
on society which would disturb the even tempo of life of the
community and if the effect is confined only to a few individuals
directly involved as distinct from a wide spectrum of public, it
could raise problem of law and order only.
Applying
the ratio of the above decision, 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 . Even the quantity involved
is small. 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 13.10.2009
passed by the Commissioner of Police, Ahmedabad, respondent No. 2
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.
mathew [
H.B. ANTANI, J.]
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