SCA/20176/2023 of SUMITSINGH SURENDRASINGH CHAUHAN THRO HEMANT SURENDRASINGH CHAUHAN Vs STATE OF GUJARAT on 6 May 2024

1. This petition under Article 226 of the Constitution ofIndia is filed for following relief:- “(A)Quash and set aside the detention order bearingNo.PCB /DTN /PASA 609 of 2023 dated 6.11.2023further be pleased to release the detenu forthwith(Annexure ‘A’).”No.PCB /DTN /PASA 609 of 2023 dated 6.11.2023further be pleased to release the detenu forthwith(Annexure ‘A’).”

2. Thus, essentially, the challenge is to the order ofdetention dated 06.11.2023 passed by the Police Commissioner,Ahmedabad, respondent No.2 herein, by which the petitioner hasbeen detained as a “bootlegger” as defined under section 2(b) ofthe Act based on two offences registered against him, details ofwhich are as under:-

3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashedand set aside as registration of the offencesunder Sections of theProhibition Act by itself cannot bring the case of the detenue withinthe purview of definition under section 2(b) of the Act. Further,learned advocate for the detenue submits that illegal activity likely to be carried out or alleged to have been carried out, as alleged,cannot have any nexus or bearing with the maintenance of publicorder and at the most, it can be said to be breach of law and order.Further, except statement of witnesses, registration of above FIR/sand Panchnama drawn in pursuance of the investigation, no otherrelevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order. LearnedAdvocate for the petitioner further submits that it is not possible tohold on the basis of the facts of the present case that activity of thedetenue with respect to the criminal cases had affected even tempoof the society causing threat to the very existence of normal androutine life of people at large or that on the basis of criminal cases,the detenue had put the entire social apparatus in disorder.

4. Learned AGP for the respondent State supported thedetention order passed by the authority and submitted thatsufficient material and evidence was found during the course ofinvestigation, which was also supplied to the detenue indicate thatdetenue is in habit of indulging into the activity as defined undersection 2(b) of the Act and considering the facts of the case, thedetaining authority has rightly passed the order of detention anddetention order deserves to be upheld by this Court.

5. Having heard learned Advocates for the parties andhaving perused documents on record, it appears that the subjective

Facts

satisfaction arrived at by the detaining authority cannot be said tobe legal, valid and in accordance with law, inasmuch as theoffences alleged in the FIR/s cannot have any bearing on the publicorder as required under the Act and other relevant penal laws aresufficient enough to take care of the situation and that theallegations as have been levelled against the detenue cannot besaid to be germane for the purpose of bringing the detenue withinthe meaning of section 2(b) of the Act. Unless and until, thematerial is there to make out a case that the person has become athreat and menace to the Society so as to disturb the whole tempoof the society.

6. The Court has also taken into consideration the factthat the petitioner has been enlarged on regular bail by the Courtof competent jurisdiction and the detention order does not reflectapplication of mind to the fact that the Detaining Authority hasconsidered cancellation of bail to be ineffective method to curtailactivities of the petitioner. Therefore, in the opinion of the Court,the Detaining Authority not having taken into consideration thecancellation of bail option. The subjective satisfaction would standvitiated as is held in recent decision of the Hon’ble Supreme Courtin the case of Shaik Nazeen v/s. State of Telanga and Ors.reported in 2023 (9) SCC 633, the Hon’ble Supreme Court hasmade following observations in para 19 as under:- “19.In any case, the State is not without a remedy, asin case the detenue is much a menace to the society asis being alleged, then the prosecution should seek forthe cancellation of his bail and/or move an appeal to theHigher Court. But definitely seeking shelter under thepreventive detention law is not the proper remedyunder the facts and circumstances of the case.”

7. The Court also finds that there is no live link betweenthe two offences as the first offence was committed on 11.08.2022,wherein the petitioner was enlarged on 03.09.2022 and the secondoffence was committed on 07.10.2023, wherein he was enlarged on20.10.2023.

8. The Court has also taken into consideration thesubjective satisfaction arrived at by the detaining authority byconcluding that the activity of the petitioner is detrimental to thepublic health and therefore, amounts to breach in public order.However, though the detaining authority has referred to possibleadverse effect on the public health, there is no contemporaneousmaterial or anything on record which could support the conclusionof detaining authority that the sale of liquor at the behest of thepetitioner has resulted in disturbance in any manner in the societyor that the consumption of the liquor so sold by the petitioner hasresulted in damage to the public health. There is also no FSLreport on the record of the case. In absence of any material onrecord, it was not open for the detaining authority to conclude and hence, the subjective satisfaction of the detaining authority isvitiated.

hence, the subjective satisfaction of the detaining authority isvitiated.

9. The Court has also taken into consideration thesubjective satisfaction arrived at by the detaining authority byconcluding that the activity of the petitioner is detrimental to thepublic health and therefore, amounts to breach in public order.However, though the detaining authority has referred to possibleadverse effect on the public health, there is no contemporaneousmaterial or anything on record which could support the conclusionof detaining authority that the sale of liquor at the behest of thepetitioner has resulted in disturbance in any manner in the societyor that the consumption of the liquor so sold by the petitioner hasresulted in damage to the public health. There is also no FSLreport on the record of the case. In absence of any material onrecord, it was not open for the detaining authority to conclude andhence, the subjective satisfaction of the detaining authority isvitiated.

10. In view of above, we are inclined to allow this petition,because simplicitor registration of FIR/s by itself cannot have anynexus with the breach of maintenance of public order and theauthority cannot have recourse under the Act and no other relevantand cogent material exists for invoking power under section 3(2) ofthe Act.

11. In the result, the present petition is hereby allowed andthe impugned order of detention dated 06.11.2023 passed by therespondent–detaining authority is hereby quashed and set aside.The detenue is ordered to be set at liberty forthwith if not requiredin any other case.

12. Rule is made absolute accordingly.

Direct service is permitted.

Sd/-(A.Y. KOGJE, J)

SHITOLE

Sd/-(SAMIR J. DAVE,J)