MANISHKUMAR NANUBHAI PATEL v. COMMISSIONER OF POLICE SURAT

CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 16/02/2005 ORAL JUDGEMENT

1.(cid:9)This Special Civil Application under Article 226 of the Constitution of India has been filed by the petitioner challenging his detention in pursuance of the order passed against him by Police Commissioner, Surat City, on 9th September, 2004, in exercise of powers conferred upon him under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (PASA Act for short). The petitioner is under detention as bootlegger from 9th September, 2004 in pursuance of the above order.

2.(cid:9)The grounds of detention as placed on record reveal that the detaining authority took into consideration three criminal cases registered against the petitioner, under Bombay Prohibition Act, all before Surat Railway Police Station, on 10th July, 2004, 14th July, 2004 and 7th August, 2004. It was alleged that the petitioner was found in possession of 48 bottles of prohibited foreign liquor in the first case, 40 bottles of prohibited foreign liquor in second case and 24 bottles of foreign liquor in third case. The detaining authority thoroughly examined the investigation papers in both the above crimes registered against the petitioner and came to the conclusion that the petitioner was dealing in storing, selling and transporting the prohibited liquor. In view of the detaining authority, liquor is injurious to the public health and dangerous to human life. In view of detaining authority if the petitioner is kept free, the petitioner was likely to continue his illegal activities in dealing with foreign liquor. The detaining authority came to the conclusion that there was no other alternative except to detain the petitioner under the PASA Act and hence he has passed the order of detention of the petitioner which is under challenge in this petition.

3.(cid:9)Learned Advocate Mr.Kamlesh Kachhavah for the petitioner and learned AGP Mrs.H.B. Punani for the respondent No.3 were heard at length. The affidavit-in-reply filed by the detaining authority, as placed on record, was also considered.

4.(cid:9)Out of various grounds urged on behalf of the petitioner and opposed and controverted by learned AGP, it appears that this petition can be examined and disposed of on the sole issue that whether there was credible material placed before the detaining authority to come to the conclusion that by the activities of the petitioner the public order was disturbed and public health was adversely affected.

5.(cid:9)To arrive at the subjective satisfaction that bootlegging activities of the petitioner were prejudicial to the maintenance of public order and public health, the detaining authority must rely upon credible and cogent material indicating that the activities of the detenu directly or indirectly were causing or were likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or the public health. In this exercise, the detaining authority must draw a line between the cases falling under "breach of law and order" and breach of public order. The fall out, reach and impact of the activities of the petitioner determines whether potentiality of the activities alleged was capable of disturbing the public order. When reach and impact of the activities are so grave, as to affect larger section of society and when widespread danger to life, property or the public health is likely, the activities can be branded as activity affecting the public order.

The other cases are cases falling within the scope of breach of law and order, and can be taken care of by the general law. Referring to the two cases under the Prohibition Act filed against the petitioner, and going through the investigating papers, it appears that those cases came to be filed against the petitioner because he was found in possession of some prohibited foreign liquor in breach of Prohibition Act. Those cases are pending and the petitioner shall be tried and may be punished as well, if found guilty, but it is clear that through the investigating papers, which is the basic material, on which the detaining authority has placed reliance and has formed opinion, do not disclose the impact of activities of the petitioner disturbing the larger section of the society. At the most, these cases may be considered to be breach of law, for which, as aforesaid, the petitioner will be dealt with according to law.

Therefore, the act constituting criminal offences registered against the petitioner in dealing with foreign liquor, have no bearing at all on the question of maintenance of public order. In this view of the matter, the subjective satisfaction arrived at by the detaining authority based on the above material in respect of maintenance of public order is not legal, valid and in accordance with law. The order under challenge, therefore, is required to be quashed on this ground alone.