Sca No. 16161 of 2007 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA ORAL JUDGMENT : Date : 02/11/2007

By the present petition under Article 226 of the Constitution, petitioner has sought the relief of order dated 09.04.2007 of his detention being set aside. That impugned order dated

09.04.2007 is issued by Police Commissioner, SCA/16161/2007 JUDGMENT Vadodara in exercise of his powers conferred under the provisions of section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA" for short) on the basis that the petitioner was found to be repeatedly indulging in anti-social activity of bootlegging and two offences being III-C.R.No.253 and 294 of 2007 under the Prohibition Act were registered on

12.3.2007 and 27.3.2007 against the petitioner in Makarpura Police Station of Vadodara in which 104 litres of liquor is stated to have been seized as muddamal. According to the grounds of detention supplied with the impugned order, even as the aforesaid offences were being investigated, other actions under the Prohibition Act were not possible and alcohol being injurious to health, there was likelihood of danger to public health on account of consumption of illicit liquor in which the petitioner was dealing. It is further stated that possibility of the petitioner continuing in anti-social activities could not be denied and hence it was found to be necessary to detain the petitioner after considering the documents and statements which were relied upon and supplied to the petitioner.

Even as the present petition was admitted on 06.07.2007 and an affidavit-in-reply of the detaining authority was ready and executed on SCA/16161/2007 JUDGMENT

06.08.2007, it was submitted to this court and copy thereof supplied to the petitioner only on

01.11.2007 when the matter was taken up for final hearing. It is stated in that affidavit, inter alia, that prima facie involvement of the petitioner was established in the offence registered against him. It is further stated: "7. ....I say and submit that two offences have been registered against the petitioner under the provisions of the Bombay Prohibition Act, wherein the involvement of the petitioner has been clearly established from the evidence on record. I say and submit that the petitioner is doing bootlegging activities in a sequence. Therefore, the petitioner has been detained under the provisions of section 2 (b) of PASA as "Bootlegger". I say and submit that the liquor is injurious to health and likely to create health hazard in general public. Therefore, I passed the order of detention under the provisions of PASA, which is legal, valid and proper". While arguing on the basis of the said affidavit, learned A.G.P. Mr.Pathik Acharya fairly conceded that the co-detenu, Shaileshkumar @ Marshal Kanaiyalal Jayswal, detained under identical order passed on the same grounds and material was already released upon the order of detention being set aside by this Court today in Special Civil Application No.16160 of 2007. It was also fairly SCA/16161/2007 JUDGMENT conceded that neither any distinguishing feature from that case nor any additional arguments were available for the respondents.

In the above facts, it was sought to be argued on behalf of the respondents that danger to public health caused by the activity of bootlegging by the petitioner substantiated the assumption of likelihood of public order being adversely affected and, for that reason, the subjective satisfaction about the necessity of preventing the petitioner from acting in any manner prejudicial to the maintenance of public order and the impugned order directing his detention were legal and justified.

As held by this court in Amarbhai Kanjibhai Nayak v. Commissioner of Police, Ahmedabad City & Ors. [1993 (3) G.L.R. 2703] and in Sohanlal Surajaram Visnoi v. State of Gujarat [2004 (2) G.L.R. 1051], solitary incident of violation of prohibition law, normally, without anything more, would not be a problem to the maintenance of public order and, for such solitary incident, no person can be detained under the Act. It was also seen from analysis of the provisions of sub-section (4) of section 3 and the Explanation appended thereto that the SCA/16161/2007 JUDGMENT presumption of likelihood of public order being adversely affected could arise, if danger were caused to life or public health, but such danger has to be grave or widespread for the mandatory presumption of likelihood of public order being adversely affected. In the facts of the present case, nothing from the material on record could substantiate or justify the presumption of grave or widespread danger to life or public health and hence, the presumption of likelihood of public order being adversely affected could not have been legally availed by the detaining authority for the purpose of arriving at the subjective satisfaction.

Therefore, in the facts and circumstances, the impugned order dated

09.04.2007 of preventive detention is found and held to be unsustainable in law and set aside with the direction that the petitioner, Prakashkumar Chimanlal Jayswal, shall be set at liberty forthwith unless required to be detained in connection with any other case. Rule is made absolute accordingly. Direct service is permitted. (KMG Thilake) Sd/- ( D.H.Waghela, J.)