Sca No. 9930 of 2008 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 20/11/2008 ORAL JUDGMENT

By filing present petition the petitioner – detenu under Article 226 of the Constitution of SCA/9930/2008 JUDGMENT India, the petitioner has prayed to quash and set aside the order of detention dated 2.4.2008 passed by the respondent No.1 – Police Commissioner, Vadodara City, 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 is branded as “bootlegger”.

Heard the learned Advocate for the petitioner and learned AGP Mr. Chauhan for the respondents. No Affidavit in reply is filed by the respondents controverting the averments made by the petitioner.

The petitioner came to be detained as “bootlegger” on his involvement in the offence being Prohibition CR No. III-230/2008 dated 29.3.2008, registered with Karelibaug Police Station, Vadodara.

It has been submitted by the learned Counsel for the petitioner that it is a settled legal position that on registration of single solitary offence, no order of detention could have been passed as petitioner – detenu cannot be branded as “bootlegger”. It has been further submitted that the activities of the petitioner cannot be said to be injurious to the public health or public order. It has been further submitted by the learned Counsel for the petitioner that there is gross delay in passing the order of detention as well as there is gross delay in executing the order of detention. SCA/9930/2008 JUDGMENT

I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the learned A.G.P.

The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the petitioner. It is seen from the grounds that a general statement 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.

Except the general statement, there is no material on record which shows that the petitioner – detenue 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/s. POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393, having considered the decision of the Hon'ble Apex Court in the case of Ram manohar Lohia v/s. State of Bihar, reported in AIR 1966 SC 740, this Court held that the cases wherein the detention order are passed on the basis of the statements of SCA/9930/2008 JUDGMENT such witness fall under the maintenance of “law and order” and not “public Order”.

Applying the ratio of the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite findings 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.