Gujarat High Court
Shivpalsinh vs State on 13 August, 2008
Author: Md Shah
Bench: Md Shah
SCA/8524/2008 2/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8524 of 2008 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 ? ========================================================= SHIVPALSINH ATARSINH TOMAR THRO BROTHER-RAMESHSINH ATRA- - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR BHUNESH C RUPERA for Petitioner(s) : 1, Mr Vinay Pandya, asstt.GOVERNMENT PLEADER for Respondent(s) : ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 13/08/2008 ORAL JUDGMENT
1. The petitioner-detenu has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside the order dated 26.2.2008 passed by the Commissioner of Police, Ahmedabad, whereby, in exercise of power under sub-section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short, 'PASA Act') the petitioner has been detained as a bootlegger. In pursuance of the said impugned order, the petitioner is detained in jail.
Heard the learned advocate for the petitioner and the learned AGP for the respondents. It is found from the order that as the detenu was not released by the lower court, order dated 26.2.2008 was executed on him and thus, the actual date of detention is 20.3.2008. It is submitted by the learned advocate for the petitioner that the detenu was released on bail by this court vide order dated 19.3.2008 and so also the detenu was in judicial custody from 26.2.2008 to 19.3.2008.
2. From the grounds of detention, it appears that one offence being CR.I.No.5069 of 2008 under sections 66 (1)b and 65(e) etc. under the Bombay Prohibition Act, was registered with Naroda police station, wherein Indian made foreign liquor and beer tins and a four wheeler were found from the possession of the detenu. On the basis of registration of this case, the detaining authority held that the present detenu was carrying activities of selling liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenu is indulged in illegal activities, it is required to restrain him from carrying out further illegal activities i.e. selling of liquor. The detaining authority has placed reliance on the above registered offence and statements of unnamed witnesses. In the opinion of this court, the activities of the detenu can, by no stretch of reasoning, be said to be disturbing the public order. It is seen from the grounds that a general statement that has been made by the detaining authority that consuming liquor is injurious to health. In fact, a perusal of the order passed by the detaining authority shows that the 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 of the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.
3. Except two statements of the anonymous witnesses, there is no material on record which shows that the petitioner-detenu is carrying out illegal activities of selling 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 cases wherein the detention orders are passed on the basis of the statements of such witnesses fall under the maintenance of ýSlaw and orderýý and not ýSpublic orderýý.
4. 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 a 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, cannot be sustained and, therefore, it deserves to be quashed and set aside. No affidavit-in-reply is filed by the learned AGP on behalf of the respondent-detaining authority controverting the averments made in the petition.
5. I am fortified in my view by the decision taken by this court in the case of Sandip Omprakash Gupta v. State of Gujarat (2004 (1) GLR 865) that solitary incident of violation of prohibition law, normally would not be a problem to the maintenance of public order and for such solitary offence, no person can be detained under the Act.
6. In the result, this Special Civil Application is allowed. The impugned order of detention dated 26.2.2008 passed by the Commissioner of Police, Ahmedabad 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.] msp