Gujarat High Court
Bharat vs State on 27 April, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
Print
SCA/12726/2009 1/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12726 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.B.ANTANI
=========================================================
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 ?
=========================================================
BHARAT
S/O DHIRENBHAI ALIAS DHIRUBHAI THAKAR
Versus
STATE
OF GUJARAT & OTHERS
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for Petitioner.
MS MINI PILLAI, ASST. GOVERNMENT
PLEADER for
Respondents.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 27/04/2010
ORAL
JUDGMENT
By filing this writ petition under Article 227 of the Constitution of India, the detenu has challenged the order of detention No. PCB/DTN/PASA/191/2009 dated 18.09.2009 passed by the Commissioner of Police, Rajkot respondent No. 2, in exercise of powers under sub-section (1) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 [hereinafter referred to as the PASA Act] detaining the detenu as a bootlegger, as being illegal, invalid, arbitrary, void ab-initio and suffers from total non-application of mind and also in violation of the provisions of Articles 14, 21 and 22 of the Constitution of India.
Learned advocate for the detenu, Ms. Subhadra Patel submitted that the grounds of detention do not indicate any satisfaction recorded by the detaining authority that the activities of the detenu are detrimental to public order , and, therefore, the detention order is bad and illegal. She submitted that the detaining authority has placed reliance on a solitary case under the Prohibition Act but the same do not indicate anything to support disturbance to public order . She submitted that the offence was registered on 25.08.2009, the detenu was arrested on 27.08.2009, and the detenu was released on bail 27.08.2009 but the detention order is passed on 18.09.2009. Learned advocate therefore submitted that there is a delay in passing the order of detention and on this ground also, the detention order requires to be quashed and set aside.
Ms. Mini Pillai, learned AGP submitted that the detention order is just and proper and detaining authority has passed the order after considering all relevant aspects of the matter, and the same needs no interference.
Heard learned counsel appearing for both the sides. I have also perused the records available in the compilation.
It appears that on the basis of a solitary case, viz. Prohibition C.R. No. 279 of 2009 dated 25.08.2009 registered at Gandhigram Police Station, Rajkot for 52 bottles of foreign liquor against the detenu, the detaining authority held that the said activities of selling liquor of the present detenu were harmful to the health of the public, and to restrain from carrying further illegal activities, the detenu has been detained. It further appears that the offence was registered on 5.08.2009, the detenu was arrested on 27.08.2009, and the detenu was released on bail 27.08.2009 but the detention order is passed on 18.09.2009, i.e. after 21 days from the date he was released on bail. Hence there is a delay in passing the order of detention. On this ground alone, this petition requires to be allowed.
Another submission of the learned advocate for the detenu is that the grounds of detention do not indicate any satisfaction recorded by the detaining authority that the activities of the detenu are detrimental to public order and at the most it can be said to be breach of law and order . Except the statements of some anonymous witnesses, there is no material on record which shows that the detenu is carrying on activities of selling liquor which is harmful to the health of the public. She further submitted that during the period of 21 days i.e. from the date he was released on bail till he was detained, no offence is alleged against the detenu and therefore it cannot be at all said that the activities of the detenu are detrimental to public order .
In the case of Collector and DIST. MAGISTRATE V/S. SULTAN reported in AIR 2008 SC 2096 the Apex Court has distinguished between public order and law and order and held that the distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society which would disturb the even tempo of life of the community and if the effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only.
Applying the ratio of the above decision, 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 public order . Even the quantity involved is small, i.e only 52 bottles of foreign liquor. 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, it cannot be sustained and, therefore, it deserves to be quashed and set aside.
For the foregoing reasons, the petition is allowed. The impugned order of detention dated 18.09.2009 passed by the Police Commissioner, Rajkot City, respondent No.2 against the detenu 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.
mathew [
H.B. ANTANI, J.]
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