Gujarat High Court
Chandulal Jethalal Jaiswal vs The Commissioner Of Police And Ors. on 12 January, 1990
Equivalent citations: 1991CRILJ2864, (1990)1GLR599
Author: S.B. Majmudar
Bench: S.B. Majmudar
JUDGMENT B.S. Kapadia, J.
1. The petitioner-detenu has filed this hebeas corpus petition with a prayer that the detention order (Annexure-A to the petition) passed against him by the detaining authority be set aside and that the respondents be directed to set the petitioner at liberty forthwith.
2. The short facts of the case can be stated as under:
3. The petitioner is detained by the order dated 16-3-1989 passed by the Commissioner of Police, Baroda City which has been passed on his being satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Baroda City, it is necessary to do so. Said order is passed in exercise of the powers conferred on the detaining authority under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985. The petitioner is ordered to be detained in Special Jail, Bhuj as a Class II detenu as per order (Annex B to the petition). The petitioner is also served with the grounds of detention dated 16-3-89 along with the documents running into 21 pages.
4. On persual of the grounds of detention it appears that the petitioner was residing in the Navapura Police Station area of Vadodara City; that he is connected with business of spirit since last ten years; that he was obtaining large quantity of spirit in the guise of requirements for the factory situated in Sheds Nos. 98/5 and 98/6 of G.I.D.C. Industrial Trial Estate, Nandesari and that he was also storing said spirit in the said factory and that he was supplying denatured spirit to Jaiswal families in Baroda City. The petitioner was also using different vehicles for transporting the goods. Said activity of the petitioner was going on since last ten years. Often cases have been registered against him by the Police. He was running factory for manufacturing Sodium Alginate in the bogus name and keeping spirit in the said factory. The first is C.R. No. 195 of 1987 filed for the offence under Sections 119, 120B, 177, 193, 197, 198, 199, 200, 417, 419, 420, 465, 416, 468, 471, 477 of I.P.C. and the second case is C.R. No. 167/89 in which petitioner was arrested on 13-3-89 and denatured spirit of 800 ltrs. worth Rs. 5,600/-was also seized from the aforesaid factory.
5. The second ground of detention is with regard to petitioner's activity relating to transportation and supplying of denatured spirit. The said activity is affecting the health and lives of the public and that on account of the said activity people of the area have a feeling of danger and insecurity. On account of his activity lives of the people are affected and five persons have given their voluntary statements but as per their requests their names and addresses are kept confidential after holding the opinion that it is proper in the public interest to keep the names and addresses of the said witnesses secret.
6. The first witness has inter alia stated in his statement dated 13-3-89 that he knows the petitioner and that he is owning Mayoor Transport Company near Khanderao Market, near the temple of Baherharaji Mate; that petitioner is obtaining spirit in the names of different bogus persons in the guise of requirement of his factory and that he is storing the spirit and after converting it into denatured spirit directly or indirectly he is supplying the same to Jaiswals of Baroda City, who are engaged in latta business. It is also inter alia stated in the grounds that he is supplying denatured spirit to Narmadaben, widow of Manubhai Jaiswal, who is popularly known as Mean Kapedi and he is also supplying denatured spirit to one Chiman Debi and Manu Shanti. It is also mentioned in the statement that before three year some persons died on account of drinking latha of Jaiswal and some persons have lost their eye-sight. It is also mentioned in the statement of the witness that on 4-3-1989 as there was festival of Mahashivratri some persons had died and some persons were admitted in the hospital on account of their consuming lathta purchased from Jaiswals of Wadi area. It is also mentioned that on 5-3-1989 at about 9.00 a.m. he had gone to Bakriwadi area to the house of one of his relatives and that he went there with his friend. When they went there entire atmosphere was full of sorrow, people were feeling insecurity, many people were running there helter skelter and they were thinking as to what would happen now and how many more persons would die. When he came to the hospital with his friend they found that there was a crowd of many persons and he could see fright and harassment on their faces. Many people were weeping on account of death of their relatives and on account of mass deaths of human beings people were excited. He along with his friend have moved in the area to see the plight of the people.
7. Similarly, there is statement of another witness recorded on the same day. He also spoke almost similarly as that stated by the first witness. According to this witness, mass deaths occured on account of taking latta.
8. Third statement is of a person whose son had died on account of taking latha. His version is also similar to that of the earlier two witnesses.
9. The next statement is of a person whose maternal uncle's son had expired on 5-3-1989 due to consumption of latha. He has also given the statement on 13-3-1989. His version is also almost similar to the versions of the earlier witnesses.
10. The last statement is of a person whose elder brother had died on account of taking latha. He has also given statement on 13-3-1989. His version is also almost on the same lines as that of earlier witnesses.
11-12. After referring to the aforesaid statements the detaining authority has also considered the steps that can be taken under Section 93 of the Bombay Prohibition Act or under Sections 107 and 110 of the Criminal Procedure Code as also steps under Section 56 of the Bombay Police Act. He ultimately came to the conclusion that none of them would be effective step. In para 5 of the grounds of detention the detaining authority has mentioned that the petitioner was a known bootlegger and that he was keeping spirit in the guise of the head for the factory in the names of bogus persons and that he was storing the same and was selling the same to Jaiswals of Baroda City. He has further mentioned that the petitioner by doing so was putting the lives and health of the public in danger. He further mentioned that order of bail was granted to the petitioner. However, proceedings for setting aside the said order of bail could not have been taken in view of the provisions of Section 437 of the Criminal Procedure Code. Thereafter on his being satisfied for detaining him with a view to preventing him from acting in any manner prejudicial to the public order the aforesaid order was passed.
13. In this case it is pointed out in the petition that the petitioner had made representations to the respondents Nos. 1 and 2 through jail on 25-3-1989, but according to him, the same were not considered and there was great delay in considering his representations.
14. The petitioner has raised various points in the petition. However, at the time of hearing Mr. H. L. Patel learned Advocate appearing for the petitioner has pressed the following three points:
(1) There is no material to show that the petitioner was supplied the denatured spirit.
(2) There is no evidence to show that the petitioner had supplied denatured spirit to Jaiswals of Baroda City.
(3) According to newly added ground, it was submitted by the petitioner that he was supplied documents running from pages 1 to 21 while the index page supplied to him referred to pages up to 33. That he was not supplied the papers at pages 22 to 26 of item Nos. 9 and 10. The copy of the said indexis annexed to the petition at page 31/4 and the said papers referred to in the index which according to him were taken into consideration by the detaining authority, were not given to him, and hence he could not make affective representation against the order of detention and therefore, the order of detention a is violative of Article 22(5) of the Constitution of India and therefore, continued detention is bad and illegal.
15. It would be desirable to deal with the laat point first. It may be mentioned that this point was raised by adding para 17A to the petition and affidavit-in-reply to that added paragraph was filed by the detaining authority i.e. the Commissioner of Police, Baroda City, the detaining authority has dealt with the allegations made in para 17A and stated in his reply dated 7-9-1989 that the contention is after-thought and not tenable on facts and law and that it is not well-founded. He has also stated that the petitioner was supplied the impugned order of detention, committal order, grounds of detention and supporting documents totalling pages 1 to 21. He has further pointed out that endorsement to that affect was made by the petitioner below the impugned order of detention. He has further stated that aforesaid documents were supplied to the detenu by Shri J. N. Sharma, Police Inspector, P.C.B. Baroda City and the said documents were supplied to the detenu along with the index of pages 1 to 21 and the said index was signed by him i.e. the detaining authority. He further stated that disputed copy of index of documents bearing page Nos. 1 to 33 from Police Inspector, P.C.B., Baroda City was not supplied to the detenu. Under the circumstances it is submitted that question of detenu being not afforded opportunity of making effective representation as contended in newly added para 17A does not arise. No affidavit-in-rejoinder was filed on behalf of the petitioner. We have also found on verification of orginal file that there is an endorsement made by the petitioner. We have also perused the proposal made by the Sponsoring Authority as also the notings made by the detaining authority. No new material is added or referred to in any of the aforesaid two documents.
16. It may be stated that on pages 22 to 26 there are two items i.e. items Nos. 9 and 10. One of them is proposal of the Police Inspector, P.C.B. and the other is the notings of the Police Commissioner. These two documents, as stated above, do not refer to any other material than the material supplied to the detenu and therefore, the said proposal as well as the notings of the Commissioner were not required to be supplied, to the detenu. The notings of the Commissioner would only show as to how he has applied his mind, to the proposal and how he has satisfied himself on the material for the purpose of detaining the petitioner. Therefore, even otherwise these two documents cannot be said to be documents relied on by the detaining authority for the purpose of detaining him. Under the circumstances, we do not find any substance in this point raised on behalf of the petitioner.
17. Reverting to the first point that there was no material to show the supply of denatured spirit to the petitioner, it may be stated that Mr. Patel has strenuously argued this point and has relied on certain documents annexed by the petitioner with the petition namely, Annexures-D and E. Annexure-D appears to be some endorsement made about the visits to the factory of officials of Excise Department while Annexure E is a letter dated 16-10-1987 written to the Superintendent of Prohibition and Excise Department, Narmada Bhuvan, Baroda, on the subject of sealed barrel of denatured spirit. The quantity which is found and which has been referred to in the C.R. No. 167 of 1989 is 800 ltrs. of denatured spirit. It was seized on 9-3-1989. It is submitted that the last endorsement made on Exh. D which is a xerox copy of the Visit Book is of 9-9-86. The first entry refers to five barrels having 1000 ltrs. of spirit and realing thereof as they could not produce particulars about the material. While the other entry also speaks about the work of pulvarising sodium in progress. It also states that four barrels which are sealed are highly rusted and there was possibility of holes in future and therefore, it was requested to Mr. Dani to change the same in other barrels, but Mr. Dani told that other barrels were not available and therefore, they were kept in the same position as they were.
18. It is interesting to note that they speak about the spirit and therefore, in the year 1986 when they visited there were five barrels of spirit having 1000 ltrs. The endorsement is made by the officer of the Prohibition and Excise Department. He cannot be said to be unknown about spirit and denatured spirit. But there is only reference of spirit and not denatured spirit. However, in the letter of 16-10-87 Mr. Dani, who was power of attorney holder has used the words "sealed barrels of special denatured spirit" and asked them to remove the said goods from their godown or to pay Rs. 1,000/- as godown charges.
19. It may be mentioned that so far as C.R. No. 167/89 is concerned, copy of the F.I.R. is also given to the petitioner. In the said F.I.R. it is mentioned that illegal spirit (denatured spirit) was stored by him in the barrels. At the time when they raided the factory they found there were two persons named, Mansingh Jita Bhuria Bhil and Rambhau Marutiroo Bhosle. Said two persons were asked to produce pass and/or permit in respect of the same, but they have said that they were not having the same and they also told that key of the lock of godown was with their boss Chandulal Jethalal Jaiswal. The lock on the godown was broken open in the presence of panchas and in the presence of panchas said four barrels which were full of liquid were found while one of them was empty, but smell of denatured spirit was coming out from the said empty barrel. Each container contained 200 ltrs. totalling 800 Itrs and thereafter samples were taken. It is clear from the F.I.R. that on 9-3-89, 800 ltrs. of denatured spirit were found without pass and/or permit from the factory of the petitioner. When actually said spirit was found no further evidence would be necessary on the point as to from which source the petitioner obtained the same. The fact remains that he had this stock in his factory without pass or permit. Mr. H. L. Patel tried to connect the said stock of five barrels with the present stock. It may be mentioned that this stock is different from the earlier stock of five barrels inasmuch as the five barrels of 1986 were already sealed while 800 ltrs. of denatured spirit found in four barrels in 1989 were not in sealed condition. If they were sealed they would have referred to the same in the F.I.R. and necessary panchnama would have been drawn, but in absence of that it cannot be said that the spirit which was found on 9-3-1989 was the same as was found in 1986.
20. However, it may be stated that the jurisdiction of the Police Commissioner under the PAS A Act is a suspecion jurisdiction and therefore; it cannot be said that in absence of the material to show source of the supply of denatured spirit, what is found in F.I.R. of C.R. No. 167/89 cannot be relied upon for showing the activity of the petitioner of storing denatured spirit illegally in the sheds of his factory. Thus, the argument of Mr. Patel on the point that the detaining authority has passed the order without any material on record to show the supply of denatured spirit to the petitioner, cannot be accepted.
21. Referring to the second contention with regard to the point that there is no evidence to show that petitioner has supplied denatured spirit to Jaiswal of Barpda, it may be stated that statements of the witnesses have been summarised earlier in the judgment and it is clear from the statements of the first witness that he has referred to the names of persons namely, Nirmalaben, widow of Manubhai Jaiswal, popularly known as Manu Kapodia, Chiman Dhedi and Manu Ganti to whom the present petitioner has supplied denatured spirit. Similar is the version of the other witnesses on the point. Mr. Patel has challenged the said statements on the ground of vagueness. According to him, statements of said witnesses are vague in absence of particulars. It may be mentioned that the names of the persons to whom the material was supplied are given and the Wadi area in which they are residing is also given and as the petitioner was regularly supplying denatured spirit to the persons of his community, no further particulars would be necessary looking to the special facts and circumstance of the present case. It is to be considered as to whether the statements are vague in the light of the background and the context of the facts. On this point Mr. G. D. Bhatt, learned Addl. PP has relied on the judgment of the Supreme Court in the case of Shafiq Ahmad v. District Magistrate, Meerut, 1989 (4) SCC 556 : AIR 1990 SC 220 wherein the last contention that was raised as referred to in para 8 of the judgment is as under:
".........The grounds mentioned were vague and unintelligible. It was not stated, it was urged, that as to what the petitioner said, to whom the rumour was spread as mentioned in ground No. 1 and what "other provoking things" the petitioner is alleged to have said as alleged in the grounds mentioned before. It was urged, it is further not clear as to whom the petitioner wanted to teach a lesson. It has to be borne in mind that if more than one ground are stated in the grounds then the fact that one of the grounds is bad, would not alter order of detention after the amendment of the Act in 1984 provided the other grounds are valid. But quite apart from the same, it appears to us that none of the grounds were vague. The grounds must be understood in the light of the background and the context of the facts. It was quite clear what the detaining authorities were trying to convey was that the petitioner stated things of the nature and it was to teach Hindus a lesson. Hence, it was meant to create communal tension. We find no irrelevancy or vagueness in the grounds. On this ground the challenge cannot be sustained."
From the aforesaid observations of the Supreme Court it is clear that the grounds must be understood in the light of the background and the context of the facts. If we read the statements of the witnesses in the light of the background and the context it is clear that the petitioner was continuously connected with the business of denatured spirit since last more than ten years. The names of the persons to whom he had supplied the goods are supplied along with the area in which they are residing. As he was regularly doing the business of supplying denatured spirit it is not necessary to give actual timings at which he had supplied the goods to the said named persons. In that view of the matter statements of the witnesses cannot be said to be vague. Therefore, the contention raised by Mr. Patel on the point that there is no evidence to show that petitioner has supplied denatured spirit to Jaiswals of Baroda, cannot be accepted.
22. In view of the aforesaid findings on all the three contentions, as stated above, there was sufficient material with the detaining authority for forming subjective satisfaction for detaining the present petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public orders as required Under Section 3(1) of the PASA Act.
23. Assuming for the sake of argument that there is some substance on the second contention raised by Mr. Patel that there is no positive specific evidence to show that the petitioner had supplied denatured spirit to Jaiswals of Baroda, the question would be "whether the entire subjective satisfaction arrived at by the detaining authority on the basis of the material relating to other grounds would also be vitiated?" With a view to properly appreciate this point it is necessary to consider the provisions of the PASA Act. Section 6 of the PASA Act provides that when a person has been detained in pursuance of an order of detention Under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each ground and accordingly such order shall not be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant not connected or not proximately connected with such person, or invalid for any other reason whatsoever. Said Section further provides that the Government or the officer making the order of detention under the said Section after being satisfied as provided in that Section with reference to the remaining ground or grounds. The language of Section 6 is clear and simple and it does not have any ambiguity. It is on the line of Section 5A of the COFEPOSA Act and therefore, even if the second ground as stated above, is taken out of consideration on the ground of vagueness still the order is deemed to have been made by the detaining authority on the remaining grounds. No authority is needed on this point and no other view is possible on this point. Still however, if any authority is needed that is the judgment of the Supreme Court in the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala, AIR 1986 SC 687 : 1986 Cri LJ 786 wherein the Supreme Court held that the expression "grounds" includes not only conclusions of fact but also all the "basic facts" on which those conclusions were founded, they are different from subsidiary facts or further particulars of the basic facts. In the said case the question was with regard to confession and whether that confession was made by the detenu knowing full well the language in which it was made or whether he was ignorant of English language and the retraction of the said confession. The Supreme Court came to the conclusion that the petitioner in the said case was feigning ignorance of English. Still however, on this point considering the other evidence on record the Supreme Court has observed in para 74 as under:
......This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention (confession?) but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before. We have to examine whether even if the facts stated in the confession are completely ignored, then the inferences can still be drawn from other independent and objective facts mentioned in this case, namely the fact of seizure after search of 60 gold biscuits from the suit case of the daughter in the presence of the father which indubitably belonged to the father and admitted by him to belong to him for which no explanation has been given and secondly the seizure of the papers connected with other groups and organisations --Pratap Sait and others to whom gold has been sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenus for the purpose of Section 3(1)(iii) and 3(1)(iv). We are of the opinion that impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument was presented in a little different shade namely the fact of retraction should have been considered by the detaining authority and the Court does not know that had that been taken into consideration, what conclusion the detaining authority would have arrived at. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. We are concerned whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position that in view of Section 5A of the Act there was sufficient material to sustain this ground of detention."
24. There is another judgment of the Supreme Court in the case of N. Meera Rani v. Government of Tamil Nadu, (1989) 4 Supreme Court Cases 418 : AIR 1989 SC 2027 wherein the Supreme Court has observed as follows in para 7 of the said judgment:
"7. Section 5A of the Act clearly provides that the detention order Under Section 3 of the Act which has been made on two or more grounds, shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid for any reason whatsoever. It further says that the detaining authority shall be deemed to have made a detention order after being satisfied as provided in Section 3 with reference to the remaining ground or grounds. In other words a ground of detention which is rendered invalid for any reason whatsoever, shall be treated as nonexistent and the surviving grounds which remain after excluding the invalid grounds shall be deemed to be the foundation of the detention order. Section 5A was inserted in the Act with effect from June 21, 1984 to overcome the effect of the decisions which had held that where one or more of the grounds of detention is found to be invalid, the entire detention order must fall since it would not be possible to hold that the detaining authority making such order would have been satisfied as provided in Section 3 with reference to the remaining ground or grounds. It is, therefore, doubtful whether the construction of Section 5A suggested by learned counsel for the appellant petitioner can be accepted. However, in the present case it was not necessary for us to express any concluded opinion on this point since we have reached the conclusion that the detention order must be quashed on one of the other contentions to which we shall advert later."
The aforesaid authorities of the Supreme Court also fully support the view which we have taken on the bare reading of Section 6 of the PASA Act.
25. However, Mr. Patel has relied on the judgment of the Supreme Court in the case of D.S. Agarwal v. Police Commissioner, AIR 1989 SC 1282 : 1989 Cri LJ 1130. Before we consider this authority we may mention that the judgment in the case of Prakash Chandra (Supra) is a judgment of three Judges of the Supreme Court spoken through Justice Sabyasachi Mukharji while the judgment in the case of D. S. Agarwal (AIR 1989 SC 1282) is a judgment of two Judges of the Supreme Court. In the case of D. S. Agarwal (supra) after considering various authorities cited before the Supreme Court including the judgment in the case of Prakash Chandra (supra) it is observed that the requisite subjective satisfaction of the detaining authority, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other arid influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered, by the detaining authority before issuing the detention order. In the said case acquitials of the detenu in the cases mentioned at Sr. Nos. 2 and 3 were not brought to the notice of the detaining authority and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. On the facts of that case the Supreme Court came to the conclusion that result in that non-placing of the material fact namely, acquittal of the detenu in the said two cases resulting in non-application of mind of the detaining authority to the said fact vitiated the requisite subjective satisfaction, rendering the detention order invalid. But it cannot be said to be an authority for the proposition that consideration of non-existent, irrelevant or vague fact vitiates the subjective satisfaction arrived at by the detaining authority on the remaining grounds or ground, particularly in view of Section 6 of the PASA Act. It may be mentioned that in the said case the petitioner was detained as he was a "dangerous person" as defined Under Section 2(c) of the PAS A Act with a view to preventing his activity as such. The detention order was passed on the grounds of which a chart was made and the said chart was that there were five cases against him out of which one case of 1981 was compromised on 16-2-1982, the fourth one was not proved, two other cases (Sr. Nos. 2 & 3) were shown to be pending trial while it is clear from the judgment that the detenu was acquitted on 20-8-88 in case at Sr. No. 2 and on 5-6-1986 in the case at Sr. No. 3. Therefore, out of five cases he was already acquitted in four cases while only one case was pending against him. Therefore, the material was only with regard to one case while as per the definition of "dangerous person" one case would not be sufficient for holding him to be a dangerous person. Therefore, in the background of the aforesaid facts, the observations made by the Supreme Court are to be read. As stated above, that is with regard to non-consideration of vital or material fact, which is not the case here and therefore, this authority does not help the petitioner.
26. The second authority relied on by Mr. Patel is the judgment in the case of Jahangir-khan Fazalkhan Pathan v. The Police Commissioner, Ahmadabad, AIR 1989 SC 1812 : 1989 Cri LJ 2097. On perusal of the said case it is clear that ratio of the said judgment is only to the effect that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the High Court and if such previous grounds of detention are taken into consideration while forming subjective satisfaction by the detaining authority in making the detention order the order of detention will be vitiated. It is of no consequence if other fresh facts disclosed in the grounds of impugned detention order have been considered. It appears from the authorities considered by the Supreme Court in that case that the Supreme Court has considered the effect of Section 15 of PASA Act vis a vis Article 22(4) of the Constitution of India. In the said case it appears that Section 6 of the PASA Act was not brought to the notice of the Court and hence it was not considered. No contention was raised on this point. In absence of such contention it cannot be said to be a decision invalidating the order in spite of Section 6 of the Act. In absence of any discussion on Section 6 of the PASA Act, it is a binding authority only on the point that previous grounds of detention which had been quashed by the High Court cannot be made the grounds for subsequent detention order and/or for that purpose forming subjective satisfaction of the detaining authority and if that is done it would be vitiated. In the present case there is no question of Section 15 at all. Hence this is not useful to the petitioner in this case.
27. In view of the settled legal position as stated above Mr. Patel has submitted that if the second ground is taken away from consideration then the only ground remains is the ground with regard to the storing of denatured spirit of 800 ltrs. by the petitioner in the factory and the question is whether that ground by itself would be sufficient for basing subjective satisfaction on the point. It may be mentioned that on this point Mr. G. D. Bhatt, learned Addl. PP has relied on the judgment of the Supreme Court in the case of Rajendra Kumar Natvarlal Shah v. State of Gujarat, AIR 1988 SC 1255. In the said case direct and proximate cause for the order of detention was the importation in bulk of Indian made foreign liquor by the detenu acting as a broker from across the boarder. In para 14 of the said judgment the Supreme Court has observed as under:
"It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a "bootlegger" as defined in Section 2(b) and therefore, he comes within the purview of Sub-section (1) of Section 3 of the Act, by reason of Sub-section (4) thereof. Sub-s. (4) of Section 3 with the Explanation appended thereto gives an enlarged meaning to the words acting in any manner prejudicial to the maintenance of public order".
Thereafter Sub-section (4) of Section 3 is quoted along with its explanation and the Supreme Court has further observed as under:
"The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained. In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction. They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him Under Section 3(b) of the Act, and recite :
"In order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti-national activities for the purpose of public order and public peace and in the interest of the State........"
In our opinion, these words added by way of superscription were wholly unnecessary. They were set out by the District Magistrate presumably because of total prohibition in the State. In future, it would be better for the detaining authorities acting Under Sections 3(1) and 3(2) of the Act to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar."
28. It is therefore, clear that if there is any activity of a bootlegger which is prejudicial to the maintenance of public order within the enlarged meaning of Sub-section (4) of Section 3 of the Act that would be the material on the basis of which subjective satisfaction can be arrived at. In light of the aforesaid judgment of the Supreme Court subsequent judgments have been delivered by this Court. In the case of Popat Mohan Vaghri v. State of Gujarat , 1989 (1) GLR 551 it is observed by Justice A. P. Ravani in para 5 thereof as under:
".........Activity of storing liquor on a large scale and selling the same through liquor dens in public alone would be sufficient to adversely affect public order. One has to wink his eyes just for a moment and imagine his own mother, wife, sister, or daughter passing through public street where liquor is being sold in public and consumed openly........... But in view of the aforesaid decisions of this Court and that of the Supreme Court in the case of Rajendra Kumar (supra) and particularly in view of the explanation to Section 3(4) of PASA it is not permissible to take such a detached and disintegrated view of the matter. Explanation to Section 3(4) provides that public order shall be deemed to have been affected adversely inter alia if any of the activities of any person referred to in subsection directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger of life, property or public health. Once the meaning of public order as defined in explanation to Section 3(4) is kept in view it is difficult to hold that activity by which a person sells liquor in public streets and allows aids/or entices other people to drink the same in public place would not adversely affect public order."
29. In another judgment in the case of Hiraben Sadashiv Pawar v. Commissioner of Police, Baroda, 1988 (2) GLH 363 : 1988 Cri LJ (NOC) 81 in para 14 it is observed as under:
"From the above authorities it is clear that once when detaining authority is acting under the provisions of the Act he has to keep in mind the enlarged meaning given in explanation Sub-section (4) of Section 6 of the Act. When the detention order speaks about the detaining authority's satisfaction on the point of necessity of detaining any person (in the present case bootlegger) with a view to preventing him/her from acting in any manner prejudicial to the maintenance of public order, he has always within his mind the enlarged meaning of the phrase "acting in any manner prejudicial to the maintenance of public order" as given in explanation to Sub-section (4) of Section 3. Therefore, when a person is engaged in or is making any preparation for any activities as a bootlegger which affect or likely to affect adversely the maintenance of public order within the enlarged meaning of the explanation of said sub-section he is coming within the scope of Sub-section (1) of Section 3 of the Act. When the wordings are used in the explanation that directly or indirectly is causing or is likely to cause any widespread danger to public health, it would be a matter of drawing inference by the detaining authority on the material placed before him and it is not necessary that there should be separate material for having satisfaction on that point......."
In the said case there were about six cases filed against the petitioner under the Bombay Prohibition Act which clearly disclosed that in every case large quantity of liquor was seized and petitioner was engaged in the activities of a bootlegger and the liquor seized from the petitioner-detenu itself would indicate that country liquor was meant for sale to others and consumption thereof was likely to cause grave and widespread danger to public health.
30. In view of the above authorities and position of law Mr. Patel submitted that in all the cases referred to by Mr. G. D. Bhatt, learned Addl. PP as also in the case of Rajendrakumar (supra) question was with regard to either country liquor or foreign liquor which could be consumed while in the present case the question pertains to denatured spirit which is poisonous and therefore, it would be hazardous to hold that the petitioner was though a bootlegger running the activity which was necessarily prejudicial to the maintenance of public order, even accepting the enlarged meaning given under Sub-section (4) of Section 3 of the Act along with its explanation as also the aforesaid Supreme Court judgments.
31. Prima facie the argument of Mr. Patel appears to be attractive that this denatured spirit could be used not only for the purpose of Latha there -- from and using it as an intoxicating drink, but it can also be used for many other medical, domestic, business, professional or other purposes and therefore, the facts of the present case differ from the (acts of the cases considered hereinabove. It may be mentioned that Mr. G. D. Bhatt, learned Addl. PP was at pains to take us to the relevant Rules framed by the State Government known as "the Bombay Denatured Spirit Rules, 1959. Rule 2(14) of the said Rules defines "spirit" as rectified spirit and includes absolute alcohol. Rule 3 of the said Rules provides that no person shall denature spirit except under a licence under these Rules and in accordance with the process laid down in any regulations made in that behalf by the Director. Rule 23 of the said Rules provides that the permit and licences of the following kind for the possession and use of ordinary denatured spirit may be granted under these rules namely:
(1) Permit for domestic purposes, (2) Licence for medical purposes of registered medical practitioners.
(3) Licence for medical, scientific and educational purposes.
(4) Licence for the purposes of any art, industry or profession.
Rule 24 provides that any person desiring to use ordinary denatured spirit for domestic purposes, shall apply to the prohibition and Excise Inspector in the required form. Rule 25 provides that any registered medical practitioner desiring to Use ordinary denatured spirit for medical purposes may apply to the Superintendent or the District Inspect, as the case may be, for a licence in that behalf. Rule 26 requires that any person desiring to use ordinary denatured spirit for bona fide medical, scientific or educational purposes shall apply to the Superintendent or the District Inspector, as the case may be, for a licence in that behalf. Mr. Patel has stated in clear terms before us that the said factory of the petitioner for manufacturing sodium alginate is closed since 1986 and that he is not holding any licence or permit for any of the purposes when that is so, legitimate inference that can be drawn is that he was not to use it for domaetic purpose or medical purpose or scientific or educational purpose or any other legitimate purpose as provided under Rule 23 of the said Rules.
32. Mr. G. D. Bhatt, learned Addl. PP has also drawn our attention to the Rules known as "the Gujarat Spirit Denaturing Rules, 1964". Rule 4 of the said Rules provides that any person who desires to denature spirit for any purpose as pecified in Rule 3 shall have to make an application in that behalf. Therefore, the petitioner has no authority to denature the spirit without licence and he had no licence for denaturing sprit.
33. Mr. Bhatt has also invited our attention to Section 2(10) of the Bombay Prohibition Act, 1949 which defines that "denatured" means subjected to a process prescribed for the purpose of rendering unfit for human consumption. Section 2(24) of the said Act defines that "liquor" includes spirit, denatured spirits, wine, bear, toddy and all liquids consisting of or containing alcohol. Section 2(43) of the said Act defines that "spirit" means any liquor containing alcohol and obtained by distillation. Section 21 of the said Act provides that no person shall alter or attempt to alter any denatured spirit by dilution, with water or by any method whatsoever with the intention that such spirit may be used for human consumption, whether as a bevarage or internally as a medicine in any other way whatsoever and it further provides that no person shall have in his possession any denatured spirit in respect of which he knows or has reason to believe that such alteration or attempt has been made. Section 67 of the said Act prescribes for punishments for offences under the said Act.
34. It is clear from the facts of the present case that 800 ltrs. of denatured spirit from four barrels was found from the factory of the petitioner. When the petitioner was not having any licence as provided under the Rules the legitimate inference that can be drawn on the facts and circumstances of the case is that he was storing the same with an intention to sell it to the bootleggers who would use it after diluting the same as latha contrary to the provisions of the Act and the Rules. Under the circumstances we are unable to agree, on the special facts of this case, with this contention of Mr. Patel. In our view ratio of the decision of the Supreme Court in Rajendrakumar's case (supra) will squarely apply to the facts of the present case.
35. In result all the contentions raised by Mr. Patel before us fail and therefore, the petition is dismissed. Rule is discharged.