Gujarat High Court
SCA/11164/2007 of THAKORBHAI DINESHBHAI CHAUDHARI THRO COUSIN BROTHER Vs STATE OF GUJARAT on 26 December 2007
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11164 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 11164 of 2007
For Approval and Signature:
HONOURABLE MR.JUSTICE MD SHAH
=========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?
2To be referred to the Reporter or not ?3[Whether their Lordships wish to see the fair copy ]of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the 4constitution of India, 1950 or any order made thereunder ?
5[Whether it is to be circulated to the civil judge ]??
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THAKORBHAI DINESHBHAI CHAUDHARI THRO COUSIN BROTHER- Petitioner.Versus THE STATE OF GUJARAT & ORS. – Respondents.
======================================================Appearance :Mr.A.R.Shaikh for petitioner.Mr.Apurva Dave, AGP for the respondents.
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CORAM :HONOURABLE MR.JUSTICE MD SHAH
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ORAL JUDGMENT
Date : 26/12/2007
1. Heard Mr.A.R.Shaikh Dutta for the petitioner and learned A.G.P. Mr.Apurva Dave for the respondents.
2. By way of the the present petition, the petitioner-detenu has challenged the legality and validity of the order of detention dated 1-4-2007 passed by the District Magistrate, Surat, in exercise of powers under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985( for short “the Act”).
3. The petitioner-detenu is branded as a “ bootlegger” within the meaning of Sec.2 (b) of the Act as he was found involved in offences under the Bombay Prohibition Act by engaging himself in the illegal sale and distribution of country liquor. While passing the order of detention the detaining authority has considered the fact of registration of four cases – CR no.898/2006 dt.30-9-2006 , CR no.146/2007 dt.18-2-2007 CR no.148/2007 dt.18-2-2007 all for the offence punishable under Secs.66(1)B, 65AE, 116(2), 81/84 of the Bombay Prohibition Act and the statement of the accused in the probibition cases.
4. The learned Advocate for the petitioner-detenu has assailed the order under challenge on various grounds as mentioned in the memo of petition. However,this petition is capable of being disposed of on the sole ground as to whether there was cogent and credible material placed before the detaining authority to come to the conclusion that by the activities of the petitioner, the public order was disturbed.
5. To reach to the subjective satisfaction that the bottlegging activities of the petitioner were prejudicial to the maintenance of public order, 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 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 etc. While undertaking this exercise, the detaining authority has to draw a clear line between the cases falling within the category of breach of law and order and the cases falling within the category of breach of public order.
6. In the present case, the three pending criminal
cases registered against the petitioner under the Prohibition Act and the activities of the petitioner of engaging himself in the illegal sale and distribution of country liquor can at the most be said to be involving law and order problem for which for which the petitioner can be adequately punished. It is therefore difficult for this Court to accept that the petitioner has been rightly detained as the activities of the petitioner can at the most be termed as affecting law and order. In short, no further discussion on the other points raised in this petition is required as in the opinion of this Court, the order of detention is not sustainable in the eye of law. In this context reference may be had to the decision rendered in the case of Harpreet Kaur vs. State of Maharashtra, reported in 1992 SC 797, wherein it has been held that involvement of the accused in fourteen offences including lifting of gas cylinders cannot be said to be prejudicial to the maintenance of public tranquility and the authority was not justified in arriving at the subjective satisfaction that the activities of the petitioner were likely to affect the maintenance of public tranquility..”
7. In the result, the petition is allowed. The impugned order of detention dated 1-4-2007 passed by the District Magistrate, Surat,is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute. Direct service is permitted.
(M.D.Shah,J.)
lee.