SCA/1169820/2008 v. STATE OF GUJARAT THROUGH DEPUTY SECRETARY & 2

CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED ORAL JUDGMENT Date : 27/11/2008

1.0 By way of this petition under Article 226 of the Constitution of India, the detenu has prayed to quash and set aside the order of detention dated 15.04.2008 passed by the Police SCA/1169820/2008 JUDGMENT Commissioner, Ahmedabad, 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”).

2.0 Learned Advocate for the detenu has invited my attention to the order of detention dated 15.04.2008 by which detenu was arrested and sent to Palanpur Jail as well as to the grounds supplied therein. As per the grounds of detention, one criminal case is shown as registered against the detenu which pertains to 'Prohibition'.

2.1 Learned Advocate has further submitted that in the order of detention it is stated that the detenu is carrying on anti-social activities and on the basis of aforesaid offence of 'bootlegging' registered against the detenu, the detenu was termed as 'Bootlegger' within the meaning of Section 2(b)of the P.A.S.A. Act. It is also stated in the impugned order that as the aforesaid activities of bootlegging of the detenu SCA/1169820/2008 JUDGMENT are dangerous and affecting maintenance of 'public order' and 'public health', order of detention has been passed.

3.0 I have gone through the order of detention and the grounds supplied therein and considered the arguments advanced by learned Advocate for the detenu as well as the learned A.G.P. and I am of the opinion that there is much substance in the arguments advanced by learned Advocate for the detenu. A perusal of the order passed by the detaining authority shows that the grounds which are mentioned in the order refer to violation of “law and order” and not “public order”. Therefore, on this ground, the subjective satisfaction of the detaining authority stands vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.

3.1 In the case on hand, except, the aforesaid case registered against the detenu, SCA/1169820/2008 JUDGMENT there is no material on record which would show that the detenu is carrying on illegal activities which are harmful to the maintenance of 'public health' or 'public order'.

3.2 In the case of “Ram manohar Lohia v/s. State of Bihar,” reported in AIR 1966 SC 740, the Hon'ble Apex Court held that the cases wherein the detention order are passed on the basis of the statements of such witness shall fall under the maintenance of “law and order” and not “public Order”. Similar view is taken by this Court in the case of “Ashokbhai Jivraj @ Jivabhai Solanki v/s. Police Commissioner, Surat” reported in 2001 (1) GLH 393.

3.3 Applying the ratio laid down in the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite conclusion that there is threat to the 'public order' and it is very clear that the present case would not fall within the SCA/1169820/2008 JUDGMENT 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, it cannot be sustained and, therefore, it deserves to be quashed and set aside.