{"id":267044,"date":"2010-08-23T00:00:00","date_gmt":"2010-08-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shardaben-vs-commissioner-on-23-august-2010"},"modified":"2015-07-10T06:36:19","modified_gmt":"2015-07-10T01:06:19","slug":"shardaben-vs-commissioner-on-23-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shardaben-vs-commissioner-on-23-august-2010","title":{"rendered":"Shardaben vs Commissioner on 23 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Shardaben vs Commissioner on 23 August, 2010<\/div>\n
Author: Anant S. Dave,&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\n\n \n\n\n\t \n\nSCA\/14026\/2005\t 19\/ 19\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. 14026 of 2005\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE ANANT S.DAVE\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\nSHARDABEN\nW\/O SHRAVANBHAI VIHAJI THAKOR - Petitioner(s)\n \n\nVersus\n \n\nCOMMISSIONER\nOF POLICE & 2 - Respondent(s)\n \n\n================================================= \nAppearance\n: \nMR SHASHIKANT S GADE for\nPetitioner(s) : 1, \nRULE SERVED BY DS for Respondent(s) : 1,\n3, \nGOVERNMENT PLEADER for Respondent(s) :\n2, \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\tMR.JUSTICE ANANT S.DAVE\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 05\/09\/2005 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
\t   The detenue, who is
\n\tdetained under the provisions of Gujarat Prevention of Anti-social
\n\tActivities Act, 1985 ( for short, ‘the PASA Act’) branded as
\n\t‘Bootlegger’ within the meaning of section 2(b) of the PASA Act,
\n\tvide order dated 26.05.2005 passed by the Police Commissioner,
\n\tAhmedabad City, has filed this petition under Article 226<\/a> of the
\n\tConstitution of India to declare the order of detention as illegal,
\n\tarbitrary and invalid on the ground that it suffers from
\n\tnon-application of mind and violative of provisions of Article 22<\/a> of
\n\tthe Constitution of India.\n<\/p>\n
\t The order of detention
\n\trefers to the offences punishable under the provisions of Bombay
\n\tProhibition Act under Sections Sections 65 (e), 66 (b), 85 (1) (3)
\n\tand 75(a) which have been registered with different Police Stations
\n\tof Ahmedabad City vide different crime registered numbers   against
\n\tthe detenue. According to the detaining authority, the above stated
\n\tmaterial is sufficient enough to arrive at the subjective
\n\tsatisfaction for detaining the detenue under the provisions of PASA
\n\tAct. That the activities of the detenue are prejudicial and the same
\n\tare likely to result into the disturbance of public health and
\n\tpublic order, and therefore, considering the relevant documents and
\n\tmaterials the detenue was detained in exercise of powers under
\n\tSub-section (2) of Section 3 of the PASA Act. Apart from the crime
\n\tregistered case, as mentioned in the detention order does not
\n\treflect whether any relevant or specific material is considered by
\n\tthe detaining authority.\n<\/p>\n
\t  The learned advocate
\n\tfor the petitioner confined his arguments on the ground that the
\n\talleged offences registered against the detenue cannot be said the
\n\tcause of disturbing the public order or public health or in any
\n\tcircumstances prejudicial and have potential to disturb the even
\n\ttempo of public life and\/or public health. According to him, no
\n\trelevant materials did exist before the detaining authority while
\n\tpassing the order of detention and the subjective satisfaction
\n\tarrived at by the detaining authority therefore vitiated and order
\n\tof detention dated 26.05.2005 suffers from vice of non-application
\n\tof mind, and therefore, required to be quashed and set aside.\n<\/p>\n
\t  In support of his
\n\targuments he has placed reliance on the decision of the learned
\n\tSingle Judge of this Court dated 23.03.2004 rendered in Special
\n\tCivil Application No.14792 of 2003 in the case of Zarinbibi w\/o.
\n\tNazirmohamad Noormohamad Shaikh Vs. Commissioner of Police Baroda
\n\tCity and submitted that in the above mentioned case also five
\n\toffences punishable under the Bombay Prohibition Act 1949 were
\n\tregistered against the detenue of that case and similar recitals
\n\tabout disturbance of public order by prejudicial activities of the
\n\tpetitioner was found in the order of detention. According to him
\n\tafter considering various decisions reported in AIR 1989 SC 491 in
\n\tthe case of Piyush Kantilal Mehta Vs. Commissioner of Police and JT
\n\t1989 (4) SC 177 and Rashidmiya @ Chhava Ahmedmiya Shaikh Vs. Police
\n\tCommissioner, Ahmedabad and another, and the decision of the
\n\tDivision Bench of this Court dated 22.08.2000 passed in Letters
\n\tPatent Appeal No.223\/2000 in Special Civil Application No.554 of
\n\t2000 the Court has considered the relevant aspects. Therefore,
\n\taccording to the learned advocate for the petitioner, the ratio laid
\n\tdown in the above mentioned judgment is squarely applicable in the
\n\tfacts of the present case. He has submitted that except the offences
\n\tmentioned in the order of detention no other criminal activities
\n\tattributed to the petitioner and no case of violence disturbing the
\n\tpublic peace or public order is alleged against the detenue.\n<\/p>\n
\t  The learned Assistant
\n\tGovernment Pleader Mrs. H.B.Punani has submitted that the material
\n\trelied on by the detaining authority is sufficient enough to invoke
\n\tthe provisions and to exercise the power under the provisions of
\n\tSub-section 2 of Section 3 of the PASA Act and subjective
\n\tsatisfaction of the detaining authority arrived at on the basis of
\n\tconscious decision cannot be said that the said satisfaction is
\n\tdehors the material on record. She has also relied on the decision
\n\tof the Supreme Court in the case of Kanuji Zala Vs. State of Gujarat
\n\treported at 1999 (2) GLH 415 in support of her arguments. Therefore,
\n\tshe has submitted that the order of detention is valid and legal and
\n\tno interference is required to be called for under Article 226<\/a> of
\n\tthe Constitution of India.\n<\/p>\n
\t  Having heard, the
\n\tlearned counsel for the parties and perused the record of the case
\n\tincluding the affidavit in reply and considering the statements of
\n\twitnesses, I am of the opinion that the material relied on by the
\n\tdetaining authority simply registration of offences under the
\n\tprovisions of Bombay Prohibition Act, 1949 cannot be said to be
\n\tdisturb even tempo of public life or public order. There is no case
\n\tor any other prejudicial activities of the detenue resulting into
\n\tlarge scale violence which may disturb the public health and public
\n\torder. In the case before the apex court in the case of K.S.Zala Vs.
\n\tState of Gujarat (Supra) there was credible and cogent material
\n\tbefore the detaining authority which was conscious that as a result
\n\tof resorting to violence by the petitioner of that case for carrying
\n\ton his bootlegging activities, even tempo of public order disturbed
\n\ton some occasions. In such circumstances the apex court refused to
\n\tinterfere with the exercise of power by the detaining authority. It
\n\tis pertinent to mention about one more decision of the Division
\n\tBench of this High Court rendered in Letters Patent Appeal No.223 of
\n\t2000 in Special Civil Application No.554 of 2000 wherein in Paras-4
\n\tand 5 of the said judgment law laid down by the Apex Court in case
\n\tof K.S.Zala Vs State of Gujarat is discussed is as under:-\n<\/p>\n
\t?S
\nPARA-4:-  In this case of K.S.Zala Vs. State of Gujarat (Supra), the
\nSupreme Court also considered three earlier decisions in the case of
\nPiyush Kantilal Mehta (Supra); Omprakash (Supra); and Rashidmiya
\n(Supra) and observed in para 4 that in none of the three cases relied
\nupon by the learned counsel, the point whether public order can be
\nsaid to have been disturbed on the ground that the activity of the
\ndetenue was harmful to the public health arose for consideration and
\nthat the detaining authority has not recorded such satisfaction;
\nmoreover in these three cases the detaining authority has referred to
\nsome incidents of beating but there was no material to show that as a
\nresult thereof even tempo of public order was disturbed, whereas in
\nthe case before the Supreme Court  in the case of K.S.Zala Vs. State
\nof Gujarat (Supra) the detaining authority has specifically stated in
\nthe grounds of detention that selling of liquor by the petitioner and
\nits consumption by the people of that locality was harmful to their
\nhealth. It was also stated that the statements of the witnesses
\nclearly show that as a result of violence resorted to by the
\npetitioner even tempo of public life was disturbed in those
\nlocalities for some time. That material on record clearly shows that
\nthe members of public of those localities had to run away from there
\nor to go inside their houses and close their doors.\n<\/p>\n
\t\tPARA-5:-\n<\/p>\n
If we examine the present case on the anvil of the test which has
\nbeen applied by the Supreme Court in the case of K.S.Zala Vs. State
\nof Gujarat (Supra), i.e. with regard to the presence of credible
\nmaterial and as to how the detaining authority has made the mention
\nagainst the appellant being an obstruction to the public health and
\npublic order, we find that in the instant case so far as the
\nstatements of the witnesses which were recorded with regard to
\nunregistered cases, that ground has been rejected by the learned
\nSingle Judge himself. It is , of course, true that after narrating
\nthe authority has mentioned that the activities of the appellant were
\nan obstacle to the public health and public order, but this bald
\nobservation cannot be taken to be decisive so as to arrive at the
\nsatisfaction that the activities of the petitioner were prejudicial
\nto the public order or public health and that tempo of public life
\nwas disturbed. No observation made in any part of the judgment can be
\nread in isolation and bereft the context. The judgment is to be read
\nas a whole and even the observations which have been made by the
\nSupreme Court in para 6 of the judgment are to be considered in light
\nof the earlier observations made in para 5 where presence of credible
\nmaterial before the detaining authority has been insisted upon. Thus,
\nlitmus test to find out as to whether it is a case of breach of
\npublic order, material has to be there. In the case of K.S.Zala
\nbefore the Supreme Court, the detaining authority had also relied
\nupon the statements of the witnesses so as to show that violence
\nresorted to by the petitioner in that case had disturbed the even
\ntempo of public life and the material on record had shown that
\nmembers of the public of those localities had to run away from there
\nand to go inside their houses and to close their houses and to close
\ntheir doors. No such fact situation has been mentioned in the present
\ncase and the ground with regard to the statements of the three
\nwitnesses has been rejected by the learned Single Judge himself and
\nit has been held that there had been violation or infringement of the
\npetitioner’s right against such statements. In this view of the
\nmatter unregistered cases and with regard to the three incidents the
\nmaterial germane for the purpose of consideration of the threat to
\nthe public health and public order. Thus, the only material which
\nremains is the registered criminal cases and that by itself cannot be
\nsaid to be a material for the purpose of holding that the appellant’s
\nactivities had become a threat to the public order and public health.
\nNecessary material in this regard is totally wanting in the body of
\nthe detention order itself. In large number of cases, the Supreme
\nCourt has considered that involvement in bootlegging activities even
\nif coupled with violence does not amount to threat to public order or
\npublic health. The mere mention of allegations unless they are
\nsupported by any material cannot be said to be material germane for
\nthe purpose of arriving at the satisfaction with regard to breach of
\npublic order or public health and we find that after giving
\nparticulars of criminal cases, the detaining authority by including
\ncertain allegations, not supported by any credible material has
\nsimply observed that the appellant’s activities were on obstacle to
\nthe public health and public order. In this view of the matter
\nkeeping in view the observations made by the Supreme Court in the
\ncase of K.S.Zala Vs. State of Gujarat (Supra) itself in paras 4 and
\n5, we do not find that it can be held to be a case of breach of
\npublic health and public order. Learned counsel for the appellant has
\nalso argued several other points before us, but we do not find it
\nnecessary to go into those grounds. It may be mentioned that it was
\nnot a case of breach of public order or public health and it was not
\nargued before the learned Single Judge. Even if that be so, in such
\nmatters, the point which arises on the face of the facts of the case
\nby the body of the order itself , which does not require further
\ninvestigation of the facts can certainly be allowed to be raised and
\nwe allow learned counsel for the appellant to raise this point and
\nfind that this point is not without substance. The impugned order
\npassed by the learned single judge upholding the detention order
\ntherefore, cannot be said to be in consonance with the settled
\nposition of law. The detention order deserves to be quashed and set
\naside on this ground alone. We therefore, do not go into other
\ngrounds which were raised on behalf of the appellants.??\n<\/p>\n
7.
\n   In the present case, it is evident from the record that statements
\nof anonymous witness are recorded by the detaining authority which
\ncan even a remotely connect the prejudicial activities of the detenue
\nresulting into disturbance of the public order or public health as
\nrightly held by the Division Bench in the above case i.e. Letters
\nPatent Appeal No.223 of 2000 (Supra) that only material which remains
\nis the registered criminal case and that by itself cannot be said to
\nbe a material for the purpose of holding that the detenue’s activity
\nhad become a threat to the public order or public health. Necessary
\nmaterial in this regard is totally warranting in the body of the
\ndetention order. In such number of cases the Supreme Court has
\nconsidered that involvement in bootlegging activities even if couple
\nwith violence does not amount to dangerous the mere mention of
\nallegations unless they are supported by any material cannot be said
\nto be a material germane for the purpose of arriving at the
\nsubjective satisfaction with regard to the breach of public order or
\npublic health and we find that detaining authority by including
\ncertain allegations has simply observed that the appellant’s
\nactivities were an obstacle to the public health and public order. ‘<\/p>\n
\t\tIn
\nview of the above, in the present case no other credible material or
\ncogent material did exist before the detaining authority for arriving
\nat the subjective satisfaction that the activities of the detenue are
\nprejudicial to the public order or public health, and, therefore, the
\norder of detention is passed contrary to the provisions of the
\nsettled law and therefore, required to be quashed and set aside.\n<\/p>\n
8.
\n\t\t\t  In the circumstances, the order of detention dated 26.05.2005
\n\t\t\tpassed by the respondent no.1 herein, is hereby quashed and set
\n\t\t\taside. The detenue Shardaben W\/o. Shravanbhai Vihaji Thakor, is
\n\t\t\ttherefore ordered to be set at liberty forthwith, if not required
\n\t\t\tin any other offence by any other authority.\n<\/p>\n
9.
\n\t\t\t Rule is made absolute to the aforesaid extent with no order as to
\n\t\t\tcosts. Direct Service is permitted.\n<\/p>\n
\t\t\t\t\t\t\t(ANANT
\nS. DAVE, J.)amit<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Shardaben vs Commissioner on 23 August, 2010 Author: Anant S. Dave,&Nbsp; Gujarat High Court Case Information System Print SCA\/14026\/2005 19\/ 19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14026 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S.DAVE ================================================= 1 Whether Reporters of Local Papers […]<\/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-267044","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nShardaben vs Commissioner on 23 August, 2010 - 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\/shardaben-vs-commissioner-on-23-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shardaben vs Commissioner on 23 August, 2010 - 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