SCA/19329/2023 of SAMPATLAL @ SAMPATBHAI MARWADI S/O VANARAM KALAL Vs STATE OF GUJARAT on 6 May 2024

1. This petition under Article 226 of the Constitution ofIndia is filed for following relief:- “A)xxx B)That this Hon’ble Court may be pleased to allowthis present Special Civil Application by issuingappropriate writ or habeas corpus or any otherappropriate writ, order or direction quashing andsetting aside the impugned order of detentionAnx-A dated 26.10.2023 passed by respondentno.2.”this present Special Civil Application by issuingappropriate writ or habeas corpus or any otherappropriate writ, order or direction quashing andsetting aside the impugned order of detentionAnx-A dated 26.10.2023 passed by respondentno.2.”

C) and D)xxxxx”

2. Thus, essentially, the challenge is to the order ofdetention dated 26.10.2023 passed by the Police Commissioner,Surat, respondent No.2 herein, by which the petitioner has beendetained as a “bootlegger” as defined under section 2(b) of the Actbased on three offences registered against him, details of which areas under:- 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 likelyto 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.

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 subjectivesatisfaction arrived at by the detaining authority cannot be said to

Facts

be 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. Except general statements,there is no material on record which shows that the detenue isacting in such a manner, which is dangerous to the public order.

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 though the detaining authorityhas concluded that the so called activity of the petitioner has led toharm public health, however, there is no material or data on recordto support such subjective satisfaction. Further, even FSL report isnot on record. Therefore, the subjective satisfaction that the publichealth is adversely affected is vitiated.

8. Moreover, this Court by judgment and order dated 25.04.2024 in SCA No.18988 of 2023 has quashed order ofdetention qua co-detenue.

9. 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.

10. In the result, the present petition is hereby allowed andthe impugned order of detention dated 26.10.2023 passed by the respondent–detaining authority is hereby quashed and set aside.The detenue is ordered to be set at liberty forthwith if not requiredin any other case. Rule is made absolute accordingly.

Direct service is permitted.

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

SHITOLE

Sd/-(SAMIR J. DAVE,J)