Gujarat High Court
Dilipbhai Alias Pintoo Rajybhai Mali ... vs State Of Gujarat on 31 August, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/7325/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7325 of 2020
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DILIPBHAI ALIAS PINTOO RAJYBHAI MALI THROUGH WIFE SEJALBEN
DILIPBHAI MALI
Versus
STATE OF GUJARAT
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Appearance:
MR AMRISH K PANDYA(3219) for the Petitioner(s) No. 1
MR. JAYNEEL PARIKH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2
NOTICE SERVED(4) for the Respondent(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 31/08/2020
ORAL ORDER
1. The present petition is directed against the order of detention dated 12th February, 2020 being POL/PASA/SR.-37/2020 passed by the learned District Magistrate, Vadodara - Detaining Authority that is respondent No.2, under the provisions of sub-section (2) of Section 3 of the Gujarat Prevention of Anti-social Activities Act, 1985 (hereinafter referred to as "the Act of 1985"). Along with the order of detention dated 12th February, 2020, the grounds have been supplied under the provisions of sub-section (1) of Section 9 of the Act of 1985.
2. As is discernible from the grounds supplied, it has been stated that the petitioner with a view to taking financial benefits has indulged himself in the illegal activities for which a First Information Report being III C.R. No.124 of 2019 has been registered with Vadodara Taluka Police Station for the offences under the Gujarat Prohibition Act, 1949. It further states that from the statements, as well as the order releasing the petitioner on bail, clearly suggest that the antisocial activities are likely to create obstacle in the maintenance of public order and public health. It also states that in addition to the First Information Report in Page 1 of 6 Downloaded on : Thu Sep 03 21:43:52 IST 2020 C/SCA/7325/2020 ORDER question there are other four offences registered against the petitioner under the Gujarat Prohibition Act, 1949 of the years 2018. It is stated that on the basis of the offences registered against the petitioner, the Detaining Authority is satisfied that the petitioner is indulged in carrying out the antisocial activities. Besides no action has been taken against the petitioner under Section 57(c) of the Gujarat Police Act, as the prerequisite for exercising the powers is not present. Hence, on careful consideration of the case, the respondent No.2 is satisfied that the petitioner is 'Bootlegger' and is indulged in transporting/selling the contraband liquor. The antisocial activities of the petitioner is disturbing the public order and public health. It is also observed that if the petitioner is not detained, the petitioner will continue with such activities. Hence, with a view to regulating such activities, the petitioner is detained.
3. Mr. Amrish Pandya, learned advocate for the petitioner, while inviting the attention to the representation dated 29th May, 2020 (page 19 of the compilation) submitted that the petitioner, has categorically requested for providing the papers pertaining to four prohibition cases inasmuch as, reliance has been placed by the respondent No.2 Detaining Authority on the said orders for passing the order dated 12 th February, 2020 and non-supply of those documents, was in breach of the provisions of Article 22(5) of the Constitution of India. It is submitted that though the material has been relied upon, the same has not been supplied to the petitioner. Accordingly, the right of the petitioner, has been grossly affected. In support of the said contention, reliance has been placed on the judgment in the case of Koli Sureshbhai Balabhai Parmar v. District Magistrate, Bhavnagar reported in 2000 (2) G.L.H. 540, wherein it is held that non-supply of the copy of the documents relied upon in the grounds of detention is fatal to continue detention and the detenu need not show that any prejudice is caused to him. As is clear from the grounds mentioned in the order dated 12.2.2020, four Page 2 of 6 Downloaded on : Thu Sep 03 21:43:52 IST 2020 C/SCA/7325/2020 ORDER offences under the Prohibition Act, registered with the concerned police station, have been relied upon for declaring the petitioner as a "Bootlegger" within the meaning of clause (b) of Section 2. It is submitted that there was only one offence registered against the petitioner in the year 2019 and the petitioner was released on bail on 8 th April, 2019. In the intervening period, that is, after registration of the First Information Report till the order dated 12 th February, 2020, no new offence has been registered against the petitioner under the Gujarat Prohibition Act, 1949. Moreover, the order under challenge has been passed on 12th February, 2020 that is almost after a period of 11 months with an unexplained delay. It is thus, urged that the order dated 12th February, 2020 deserves to be quashed and set aside.
4. On the other hand, Mr. Jayneel Parikh, learned Assistant Government Pleader, has vehemently opposed the present petition on the ground that the order dated 12th February, 2020, is legal and no interference is called for. Though it is the case of the petitioner that there is only a solitary offence for which First Information Report has been registered with the Vadodara Taluka Police Station under the Gujarat Prohibition Act, 1949; however, there are other four First Information Reports registered against the petitioner for the offences under the Gujarat Prohibition Act, 1949. Thus, looking to the registration of the First Information Reports against the petitioner, clause (b) of Section 2 of the Act of 1985 has been directly attracted inasmuch as, the petitioner has been indulged in the activities of dealing with the liquor in contravention of the provisions of the Gujarat Prohibition Act, 1949 and the Rules made thereunder. It is submitted that the order passed by the Detaining Authority dated 12th February, 2020 is legal and is passed in consonance with the provisions of Act of 1985 and no interference is called for.
5. Heard Mr. Amrish Pandya, learned advocate for the petitioner Page 3 of 6 Downloaded on : Thu Sep 03 21:43:52 IST 2020 C/SCA/7325/2020 ORDER and Mr. Jayneel Parikh, learned Assistant Government Pleader for the respondent No.1.
6. Pertinently, the order dated 12th February, 2020, has been passed by the District Magistrate, Vadodara that is respondent No.2 Detaining Authority together with grounds as indicated in the communication dated 12th February, 2020 under the provisions of sub-section (1) of Section 9 of the Act of 1985. Clearly, the First Information Report registered for the year 2019 is one of the grounds. Further, registration of the four First Information Reports for the offences under the Gujarat Prohibition Act, 1949 is also the ground which weighed with the Detaining Authority for passing the order dated 12 th February, 2020. The learned Assistant Government Pleader when was confronted, could not dispute the said aspect. Moreover, the petitioner has also made the representation dated 29th May, 2020 requesting for providing the said documents, which undisputedly was not supplied to the petitioner. Thus, in view of the non-supply of the documents which are very much forming the ground of the detention, the same would be fatal to continue detention of the petitioner any further. The principle laid down by this Court in the case of Koli Sureshbhai Balabhai Parmar v. District Magistrate, Bhavnagar (supra) applies on all fours to the facts of the present case. This Court in paragraph 11 has observed thus:
"11. In M. Ahmedkutty v. Union of India, reported in (1990) 2 SCC 1, the contention was specifically considered that the bail application and the order granting bail, which were relied upon by the detaining authority, were not supplied to the detenu and, therefore, the detention was illegal. It was noticed that in the grounds it was clearly mentioned that the detenu was remanded to judicial custody and was subsequently released on bail. Therefore these documents were in fact placed before the detaining authority and were relied upon by him and, therefore, non supply of these relevant documents to the detenu disabled him to make an effective representation. Therefore, there was violation of Article 22 (5) of the Constitution. In this very decision it was Page 4 of 6 Downloaded on : Thu Sep 03 21:43:52 IST 2020 C/SCA/7325/2020 ORDER observed that all the documents relied upon by the detaining authority must be pari passu supplied to the detenu."
7. Besides, considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(b) of the Act. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(b) of the Act. Except general statements, there is no material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order. In this connection, it will be fruitful to refer to a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], where the distinction between 'law and order' and 'public order' has been clearly laid down. The Court observed as follows :
"Does the expression "public order" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the Page 5 of 6 Downloaded on : Thu Sep 03 21:43:52 IST 2020 C/SCA/7325/2020 ORDER community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."
8. There is no live link between the offence committed and the detention order passed. The Detaining Authority has relied upon the registration of IPC offences/prohibition offences which were registered in the years 2018 and 2019 Thereafter, the detention order is passed in February, 2020.
9. In view of above, I am inclined to allow this petition, because simpliciter registration of First Information Report by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act of 1985. Under the circumstances, the order of detention dated 12th February, 2020 being POL/PASA/SR.-37/2020 passed by the learned District Magistrate, Vadodara - Detaining Authority is hereby quashed and set aside. The petitioner detenu is ordered to be released forthwith.
10. Rule is made absolute to the aforesaid extent. No order as to costs.
(SANGEETA K. VISHEN,J) RAVI P. PATEL Page 6 of 6 Downloaded on : Thu Sep 03 21:43:52 IST 2020