Sca No. 22913 of 2007 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE MD SHAH ORAL JUDGMENT Date : 09/01/2008

The petitioner-detenu has preferred this petition under Article 226 of the Constitution of India SCA/22913/2007 JUDGMENT for appropriate writ, order or direction for quashing and setting aside the order dated 21.4.2007 passed by respondent No.1-Police Commissioner, Ahmedabad City, whereby, 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') whereby the petitioner has been detained as a bootlegger. In pursuance of the said impugned order, the petitioner is detained in jail. Heard the learned advocate for the petitioner and the learned AGP for the respondents.

From the grounds of detention, it appears that six offences being CR.I.No.5103, 5126, 5165, 5223 of 2006 and 5031 of 2007 under sections 66 (1)b and 65(e) etc. under the Bombay Prohibition Act, were registered with Rajkot police station, wherein quantity of 10 litres, 19 litres, 4 litres, 70 litres, 30 litres and 5 litres respectively of country liquor was found from the possession of the detenu. The main ground of detention sought to be made out on the basis of these alleged offences under the Prohibition Act. On the basis of registration of these cases, the detaining authority held that the present detenu was carrying activities of SCA/22913/2007 JUDGMENT selling country liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenu is indulged in illegal activities, it is required to restrain him from carrying out further illegal activities i.e. selling of liquor. The detaining authority has placed reliance on six registered offences and statements of unnamed witnesses. In the opinion of this court, the activities of the detenu can, by no stretch of reasoning be said to be disturbing the public order. It is seen from the grounds that a general statement that has been made by the detaining authority that consuming liquor is injurious to health and except that, nothing is there on record showing that the activities of the present petitioner are affecting the public order. 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 these two statements, there is no material on record which shows that the petitioner-detenu SCA/22913/2007 JUDGMENT is carrying out activities of selling country liqour which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v.Police Commissioner, Surat (2001 (1) GLH 393), having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this court held that the cases wherein the detention order passed on the basis of the statements of the witnesses falls 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 of a detenu, the detaining authority must come to a definite finding 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.

In the result, this Special Civil Application is allowed. The impugned order of detention dated SCA/22913/2007 JUDGMENT

21.4.2007 passed by the Commissioner of Police, Ahmedabad City is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.

[M.D. SHAH, J.]