PASHABHAI CHAKABHAI v. STATE OF GUJARAT

Mr. U.R.Bhatt, AGP for the respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE K.R.VYAS Date of decision: 15/07/96 ORAL JUDGEMENT (cid:9)By way of this petition under Article 226 of the Constitution of India, Pashabhai Chikabhai Vaghari ( hereinafter referred to as "the detenu" ) has challenged the order of his detention dated 22nd February 1996 passed under section 3 (1) of the Gujarat Prevention of Anti Social Activities Act, 1985 ( hereinafter referred to as "the said Act") passed by the District Magistrate, Ahmedabad. (cid:9)In the grounds of detention supplied to the detenu, the detaining authority has placed reliance on ten pending cases filed against the detenu under the provisions of the Bombay Prohibition Act. The detaining authority has also placed reliance on the statements of four witnesses of the area where the detenu is carrying on his alleged anti-social and naferious activities.

However, the detaining authority has not disclosed the identity of these witnesses invoking the provisions of section 9 (2) of the said Act. Considering this material, the detaining authority has recorded a finding that the detenu is a "bootlegger" within the meaning of section 2 (b) of the said Act and with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, it was necessary to pass the order of detention against him and, therefore, the impugned order is passed, which is under challenge in the present petition. (cid:9)Mrs Patel, learned Advocate appearing for the detenu, has raised number of contentions. However, it is not necessary to deal with each of them as the present petition can be disposed off on the first contention itself. Mrs Patel submitted that the subjective satisfaction arrived at by the detaining authority that the detenu is a bootlegger is not genuine as the alleged activities of the detenu as a bootlegger do not affect adversely or are not likely to affect adversely the maintenance of public order.

In the submission of Mrs Patel , the offences alleged against the detenu in the grounds of detention and also the allegations made by the witnesses could not be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of maintenance of public order. In support of her submission, reliance is placed by Mrs Patel on the decision of the Supreme Court in the case of Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad city AIR 1989 SC 491. In the said case, the Supreme Court has laid down as under: "It may be that the detenu is a bootlegger within the meaning of S.,2 (b) of the Act, but merely because he is a bootlegger, he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of S.3 of the Act, his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order.

A person may be very fierce by nature, but so long as the public generally are not affected by his activities or conduct, the question of maintenance of public order will not arise. In order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of 'public order'.." (cid:9)I have gone through the statements of the witnesses in the present case and , in my view, the facts in the present case are identical to the case before the Supreme Court and, therefore, the ratio laid down by the Supreme Court in the case of Piyush Kantilal Mehta ( Supra) is applicable to the present case.