Gujarat High Court
SCA/13772/2008 of AMIN @ RICHIE BASHIRBHAI SHAIKH Vs STATE OF GUJARAT THROUGH SECRETARY on 26 December 2008
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13772 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 13772 of 2008
For Approval and Signature:
HONOURABLE MR.JUSTICE Z.K.SAIYED
=========================================================1[Whether Reporters of Local Papers may be allowed ]to see the judgment ?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 ?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 ]?
=========================================================AMIN @ RICHIE BASHIRBHAI SHAIKH - Petitioner(s)Versus STATE OF GUJARAT THROUGH SECRETARY & 2 - Respondent(s)
=========================================================
Appearance :MR MM TIRMIZIfor Petitioner(s) : 1,MS BHAVIKA KOTECHA, AGP for Respondent(s) : 1, 3,RULE SERVED BY DS for Respondent(s) : 1 - 2.=========================================================
CORAM :HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 26/12/2008
ORAL JUDGMENT
1. By filing present petition, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order of detention dated 24.6.2008 passed by the respondent No.2 – Police Commissioner, Ahmedabad, against SCA/13772/2008
the detenu, in exercise of power conferred under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “PASA Act”). The detenu is branded as “bootlegger”.
2. Heard the learned Advocate for the petitioner and learned AGP Ms. Bhavika Kotecha for the respondents. No Affidavit in reply is filed by the respondents controverting the averments made by the petitioner.
3. The detenu came to be detained as “bootlegger” on his involvement in the offences being Prohibition CR No. 5158 of 2008 registered with Dani Limda Police Station, Ahmedabad.
4. It has been submitted by the learned Counsel for the petitioner that it is settled legal position that on registration of single solitary offence no order of detention could have been passed as the detenu cannot be branded as “bootlegger' on the alleged activity. It has been submitted that the activities of the detenu cannot be said to be injurious to the public health or public order. It has been submitted that there is a delay in passing the impugned order of detention. It has been further submitted that no cogent material and/or no document is supplied to the detenu in respect of subjective satisfaction.
5. I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the learned A.G.P.
6. The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the petitioner. It is seen from the grounds that a general statement 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 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.
7. Except the general statement, there is no material on record which shows that the petitioner – detenue is carrying out illegal activities of selling liquor which is harmful to the health of the public. In the case of ASHOKBHAI JIVRAJ @
Ratio decidendi
JIVABHAI SOLANKI v/s. POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393, having considered the decision of the Hon'ble Apex Court in the case of Ram manohar Lohia v/s. State of Bihar, reported in AIR 1966 SC 740, this Court held that the cases wherein the detention order are passed on the basis of the statements of such witness fall under the maintenance of “law and order” and not “public Order”.
8. Applying the ratio of the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite findings 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.
9. In the result, this petition is allowed. The impugned order of detention dated 24.6.2008 passed by the respondent No.2 – Police Commissioner, Ahmedabad, 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 permitted.
sas
(Z.K.SAIYED, J.)