Sca No. 30344 of 2007 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 18/03/2008 ORAL JUDGMENT

Heard learned advocate appearing on behalf of the petitioner-detenue and learned AGP for the respondents. SCA/30344/2007 JUDGMENT

The petitioner-detenuee has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting the impugned order of detention dated 30.8.2007 passed by the respondent No.2-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') the petitioner has been detained as a 'Bootlegger”.

From the grounds of detention, it appears that seven offences have been registered against the petitioner – detenue at Amraiwadi Police Station under Sections 66B, 65E and 81 of the Bombay Prohibition Act wherein it is alleged that the petitioner is engaged in the illegal activity of selling of country made liquor. In all the above cases, there is a total quantity of 73 ltrs.of country made liquor were found from the possession of the petitioner-detenue. On the basis of the registration of these cases, the detaining authority held that the present detenue was carrying on activities of selling liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenue is indulged in illegal activities, it is required to restrain her from carrying on further illegal activities, i.e. selling of liquor. The detaining authority has placed reliance on the above referred offences and statements of unnamed witnesses. In the opinion of SCA/30344/2007 JUDGMENT this Court, the activities of the detenue 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. 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 arrived at by 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 few statements of anonymous witnesses, there is no material on record which shows that the petitioner-detenue is carrying on illegal activities of selling country made liquor 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 orders are passed on the basis of the statements of such witnesses 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 of a SCA/30344/2007 JUDGMENT detenue, 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 '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

30.8.2007 passed by the Police Commissioner, Ahmedabad City is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted. Sreeram. (M.D.Shah, J.)