{"id":224492,"date":"2008-09-26T00:00:00","date_gmt":"2008-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harsukh-vs-state-on-26-september-2008"},"modified":"2017-05-07T08:28:03","modified_gmt":"2017-05-07T02:58:03","slug":"harsukh-vs-state-on-26-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harsukh-vs-state-on-26-september-2008","title":{"rendered":"Harsukh vs State on 26 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Harsukh vs State on 26 September, 2008<\/div>\n
Author: H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/8190\/2008\t 7\/ 9\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8190 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\n \n \n==========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n==========================================\n\n\n \n\nHARSUKH\n@ VEERO HIRABHAI MALMADI - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT & 2 - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nSIKANDER SAIYED for Petitioner(s) : 1, \nMR\nHEMANT MAKWANA, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1,\n3, \n==========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 26\/09\/2008 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
This
\n\tpetition under Article 226 of the Constitution of India is directed
\n\tagainst the order of preventive detention dated 13th
\n\tMarch, 2008 made by the District Magistrate, Junagadh in exercise of
\n\tpowers under sub-section (2) of Section 3 of the Gujarat Prevention
\n\tof Anti-Social Activities Act, 1985 (the PASA Act) ordering that the
\n\tpetitioner be detained to prevent him from acting in a manner
\n\tprejudicial to the maintenance of public health and public order.
\n\tThe order was executed on the same day. The petitioner is thus
\n\tdetained under the Act since 13th March, 2008.\n<\/p>\n
Rule
\n\twas issued on the petition on 17th June, 2008, however,
\n\tneither the detaining authority nor the State Government, have filed
\n\tany counter to the petition.\n<\/p>\n
Heard
\n\tMr.Sikandar Saiyed, learned advocate for the petitioner and
\n\tMr.Hemant Makwana, learned Assistant Government Pleader for the
\n\trespondents.\n<\/p>\n
The
\n\timpugned order is challenged on many grounds; however, the core
\n\tground is that there is no material on record for the detaining
\n\tauthority to arrive at the subjective satisfaction that the
\n\tpetitioner was acting in a manner prejudicial to the maintenance of
\n\tpublic order.  It is submitted that the detaining authority has
\n\tproceeded on assumption and presumption by presuming that the
\n\tactivities of selling liquor per se amounts to activities which are
\n\tprejudicial to the maintenance of public health and public health.\n<\/p>\n
In
\n\tthe impugned detention order the detaining authority has recorded
\n\tthat the petitioner has formed a gang consisting of three four
\n\tpersons and that he along with his gang was importing foreign liquor
\n\ton a large scale and selling the same in Veraval and other
\n\tneighbouring areas. The detaining authority has thereafter referred
\n\tto the solitary offence registered against the petitioner on and
\n\t15.2.08 under sections 66(b), 65(a)(e) and 116(2)(b) of the Bombay
\n\tProhibition Act, 1949. The detaining authority has thereafter
\n\trecorded that the statement of the petitioner had been recorded in
\n\tconnection with the said offence wherein he had stated that he had
\n\tobtained foreign liquor from one Naranbhai Kataria and had stored
\n\tthe same in his yard. Out of the said stock he had sold 6 crates to
\n\tone Meghji Kharva which had been seized during the raid made by the
\n\tpolice. That he had secretly sold the rest of the stock in
\n\tpiecemeal. That on the basis of the aforesaid facts it is proved
\n\tthat the petitioner is importing and selling foreign liquor on a
\n\tlarge scale. It is further observed that the petitioner is carrying
\n\ton the unlawful activity of selling foreign liquor and had made it
\n\this main business and his main source of income. It is further
\n\tobserved that on the basis of the offences registered against the
\n\tpetitioner, it is apparent that the petitioner was flagrantly
\n\tindulging in the illegal activity of importing foreign liquor and
\n\tselling the same, thereby, committing offences punishable under the
\n\tBombay Prohibition Act, 1949. That in connection with the said
\n\toffences, the petitioner has been granted bail and there is all
\n\tpossibility that the petitioner would carry on his unlawful
\n\tactivities. That in view of the unlawful activities involving
\n\tliquor, the youth of the community and the poor, illiterate rural
\n\tpublic get addicted to consuming liquor and are pushed towards
\n\teconomic and physical ruin. That on account of liquor there are
\n\thooch tragedies. After consuming liquor, people lose control over
\n\ttheir senses and harass the public due to which the public order is
\n\taffected. Thus, his illegal activities of selling liquor are
\n\thindrances to the public as well as to the maintenance of public
\n\torder. That in connection with the offences registered against him,
\n\the has been enlarged on bail. It would take considerable time to get
\n\tthe bail cancelled. That while on bail, the petitioner by continuing
\n\tto carry on his illegal activity of hoarding liquor and selling the
\n\tsame was an obstacle to the maintenance of public order. The
\n\tdetaining authority has thereafter expressed the view that taking
\n\tsteps to obtain a bond from the petitioner under section 93 of the
\n\tProhibition Act was not sufficient and it would take time to take
\n\taction to extern him. Thus, with a view to immediately prevent his
\n\tantisocial activities as well as activities which are in the nature
\n\tof obstacles to the maintenance of public order it does not appear
\n\tappropriate to take action for detaining him under any other law.\n<\/p>\n
The
\n\tdetaining authority has also recorded that when the petitioner was
\n\tarrested in connection with the aforesaid offence; he had admitted
\n\tthat he the liquor that was seized belong to him and that it was
\n\tpart of the 185 crates, and that only six crates were seized,
\n\twhereas the rest were piecemeal sold by the petitioner. Thus he was
\n\tsatisfied that the petitioner was bringing foreign liquor in large
\n\tquantities from other States and was hoarding and selling the same
\n\tand was giving cooperation to persons carrying on similar unlawful
\n\tactivities. That as his aforesaid activities were obstacles in the
\n\tmaintenance of public order, it was necessary to detain the
\n\tpetitioner as it was not possible to immediately prevent him from
\n\tcarrying on his illegal activities under any other law, hence as a
\n\tlast resort he was being detained in exercise of powers under
\n\tsection 3(1) of the PASA Act as a ??bootlegger?” under section
\n\t2(b) of the said Act. On the aforesaid facts, the detaining
\n\tauthority has arrived at the subjective satisfaction that the
\n\tpetitioner is a bootlegger as defined under section 2(b) of the PASA
\n\tAct and that his activities are prejudicial to the maintenance of
\n\tpublic health and public order.\n<\/p>\n
This
\n\tCourt has perused the record of the case and has considered the
\n\tsubmissions advanced by the learned Advocates for the parties. A
\n\tperusal of the impugned order of detention and the record of the
\n\tcase shows that there is absolutely no material on record on the
\n\tbasis of which the detaining authority could have arrived at the
\n\tfinding that the activities of the petitioner are prejudicial to the
\n\tmaintenance of public health and public order. Though findings are
\n\trecorded that the petitioner is carrying on large scale activities
\n\tof selling liquor which has an adverse effect on the community,
\n\tthere is no material on record to back such findings.  The impugned
\n\torder of detention is based upon assumptions and presumptions
\n\tinasmuch as, the detaining authority has assumed that per se the
\n\tactivities of the petitioner would be injurious to the public health
\n\tand public order.  If the reason adopted by the detaining authority
\n\tis taken to its logical end, it would amount to stating that in
\n\tother States where there is no prohibition policy, the State itself
\n\tis permitting citizens to carry on activities which are prejudicial
\n\tto the maintenance of public order and public health.  Such a
\n\tconstruction, therefore, is illogical and not in consonance with the
\n\tintention of the legislature, while framing the PASA Act.\n<\/p>\n
It
\n\tis settled legal position as held by the Supreme Court in the case
\n\tof Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad
\n\tCity and<\/a> another, 1989 Supp (1) SCC 322 that in order that
\n\tan activity may be said to affect adversely the maintenance of
\n\tpublic order, there must be material to show that there has been a
\n\tfeeling of insecurity among the general public. If an act of a
\n\tperson creates panic or fear in the minds of the members of the
\n\tpublic upsetting the even tempo of life of the community, such act
\n\tmust be said to have a direct bearing on the question of maintenance
\n\tof public order. The commission of an offence will not necessarily
\n\tcome within the purview of ??public order?”. On the facts of the
\n\tsaid case the petitioner therein was detained on the ground that he
\n\twas a bootlegger and that some incidents of beating by the
\n\tpetitioner had taken place, as alleged by witnesses. According to
\n\tthe Supreme Court the said incidents did not have any bearing on the
\n\tmaintenance of public order. It was further held that:\n<\/p>\n
?SThe
\npetitioner may be punished for the alleged offences committed by him
\nbut, surely, such acts constituting the offences cannot be said to
\nhave affected the even tempo of life of the community. It may be that
\nthe petitioner is a bootlegger within the meaning of Section 2(b) of
\nthe Act, but merely because he is a bootlegger he cannot be
\npreventively detained under the provisions of the Act unless, as laid
\ndown in sub-section (4) of section 3 of the Act, his activities as
\nbootlegger affect or are likely to affect adversely the maintenance
\nof public order. We have carefully considered the offences alleged
\nagainst the petitioner in the order of detention and also the
\nallegations made by the witnesses and, in our opinion, these offences
\nor the allegations cannot be said to have created any feeling of
\ninsecurity or panic or terror among the members of the public of the
\narea in question giving rise to the question of maintenance of public
\norder. The order of detention cannot, therefore, be upheld.??\n<\/p>\n
A
\n\tDivision Bench of this Court vide judgement and order dated 22nd
\n\tAugust, 2000 rendered in the case of Ashokbhai Balabhai
\n\tMakwana v. State of Gujarat, Letters Patent Appeal No.223 of<\/a> 2000,
\n\tafter considering the decision of the Supreme Court in the case of
\n\tKanuji S. Zala v. State of Gujarat,<\/a> 1999 (2) GLH 415
\n\theld that a bald observation that the activities of the petitioner
\n\twere an obstacle to public health and public order cannot be taken
\n\tto be decisive so as to arrive at the satisfaction that the
\n\tactivities of the petitioner were prejudicial to the public order or
\n\tpublic health and that tempo of public life was disturbed. The Court
\n\tfurther held that the litmus test to find out whether it is a case
\n\tof breach of public order or breach of public health is that
\n\tcredible material has to be there. In the facts of the said case,
\n\tapart from the allegation that the petitioner was a bootlegger based
\n\ton some registered cases, there were some unregistered cases and
\n\tstatements of anonymous witnesses against the petitioner therein.
\n\tThe Court held thus:\n<\/p>\n
?SThus,
\nthe only material which remains is the registered criminal cases and
\nthat by itself cannot be said to be a material for the purpose of
\nholding that the appellant’s activities had become a threat to the
\npublic order and public health.  Necessary material in this regard is
\ntotally wanting in the body of the detention order itself.  In large
\nnumber of cases, the Supreme Court has considered that involvement in
\nbootlegging activities  even if coupled with violence does not amount
\nto threat to public order or public health.  The mere mention of
\nallegations unless they are supported by any material cannot be said
\nto be material germane for the purpose of arriving at the
\nsatisfaction with regard to breach of public order or public health.??\n<\/p>\n
In
\n\tthe facts of the present case, as noted hereinabove, the only
\n\tmaterial against the petitioner is the two criminal cases registered
\n\tagainst the petitioner, which by itself cannot be said to be a
\n\tmaterial for the purpose of holding that the activities of the
\n\tpetitioner had become a threat to the public order and public
\n\thealth. The offences registered against the petitioner cannot be
\n\tsaid to have created any feeling of insecurity or panic or terror
\n\tamount the members of the public in the area in question giving rise
\n\tto the question of maintenance of public order. As regards,
\n\tmaintenance of public health, mere sale of liquor cannot be said to
\n\tbe prejudicial to the maintenance of public health, unless there is
\n\tspecific material on record to show that the liquor was not fit for
\n\thuman consumption or was otherwise injurious to health. According to
\n\tthe detaining authority, per se, the activity of bootlegging
\n\tis prejudicial to the maintenance of public health and public order,
\n\twhich is contrary to the law laid down by the Supreme Court in the
\n\tdecision cited hereinabove. In the circumstances, the subjective
\n\tsatisfaction recorded by the detaining authority being based on no
\n\tmaterial stands vitiated and as such the impugned order of detention
\n\tcannot be sustained.\n<\/p>\n
For
\n\tthe foregoing reasons, the petition succeeds and is accordingly
\n\tallowed.  The impugned order of detention dated 13th
\n\tMarch, 2008 made by the District Magistrate, Junagadh, is hereby
\n\tquashed and set aside and the detenu ?  Shri Hasmukh alias Viro
\n\tHirabhai Malmadi, is hereby ordered to be set at liberty forthwith,
\n\tif not required to be detained in any other case.  Rule is made
\n\tabsolute.  Direct Service is permitted.\n<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
parmar*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Harsukh vs State on 26 September, 2008 Author: H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print SCA\/8190\/2008 7\/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8190 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================== 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-224492","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nHarsukh vs State on 26 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harsukh-vs-state-on-26-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harsukh vs State on 26 September, 2008 - 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