SCA/19768/2023 of MAHENDRASINH MANGALSINH RAVAT Vs STATE OF GUJARAT on 6 May 2024

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This petition under Article 226 of the Constitution of India is filed for following relief:- “(A)YOUR LORDSHIPS be pleased to issueappropriate writ, order or directions of this Hon’ble High Court, quashing and setting asidethe detention order dated 26/10/2023 atAnnexure ‘A’ to the petition placing the petitionerunder preventive detention, in purported exerciseof their powers under the Gujarat Prevention ofAntisocial Activities Act, 1985, as being illegal,null and void and further be pleased to releasethe petitioner forthwith; (B) to (D)xxxx”

2. Thus, essentially, the challenge is to the order ofdetention dated 26.10.2023 passed by the Police Commissioner,Vadodara, respondent No.2 herein, by which the petitioner hasbeen detained as a “bootlegger” based on solitary offenceregistered against him.

3. Learned advocate for the detenue submits that theorder of detention impugned in this petition deserves to be quashedand set aside on the ground of registration of the solitary offenceunder Sections of the Prohibition Act by itself cannot bring the caseof the detenue within the purview of definition under section 2(b) ofthe Act. Further, learned Advocate for the detenue submits thatillegal activity likely to be carried out or alleged to have beencarried out, as alleged, cannot have any nexus or bearing with themaintenance of public order. Further, except statement ofwitnesses, registration of above FIR/s and Panchnama drawn inpursuance of the investigation, no other relevant and cogentmaterial is on record connecting alleged anti-social activity of the detenue with breach of public order.

3.1Learned advocate for the petitioner further submitsthat it is not possible to hold on the basis of the facts of the presentcase that activity of the detenue with respect to solitary criminalcase had affected even tempo of the society causing threat to thevery existence of normal and routine life of people at large.

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.

Facts

5. Having heard learned advocates for the parties andconsidering the facts and circumstances of the case, it appears thatthe grounds of detention indicate registration of solitary FIR, thedetails of which are as under:-

6. The order of detention came to be passed on26.10.2023. The State could have resorted to due process of lawby filing cancellation of bail application and that would have beensufficient to prevent the petitioner from indulging in furtheroffence, particularly when the petitioner has been granted bail inconnection with the offence on which the detaining authority hasrelied upon to arrive at a subjective satisfaction. The fact that thepetitioner has been enlarged on regular bail by the Court ofcompetent 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.”

The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance withlaw, inasmuch as the offences alleged in the FIR cannot have anybearing on the public order as required under the Act and otherrelevant penal laws are sufficient enough to take care of thesituation and that the allegations as have been levelled against thedetenue cannot be said to be germane for the purpose of bringingthe detenue within the meaning of section 2(b) of the Act. Unlessand until, the material is there to make out a case that the personhas become a threat and menace to the Society so as to disturb thewhole tempo of the society and that all social apparatus is in perildisturbing public order at the instance of such person, the actalleged cannot be sufficient to attract detention law.

8. The Court relies upon the observations made by thisCourt in a reported judgment in the case of Sohanlal Surjaram Visnoi, reported in 2004 (2) GLR 1051, wherein in para-7 theCourt has observed as under:- “7.At the outset, it may be noted that the contentionadvanced on behalf of the petitioners that no preventivedetention order can be recorded in a solitary incidentor instance or offence cannot be accepted in toto. Thedetaining authority can pass the order of detentioneven on the basis of a solitary incident or instance,provided there is justifiable subjective satisfaction onobjective material and consideration that such incidentor offence is likely to create disturbance of "publicorder", and which needs to be controlled and curbedpreventively. There must be convincing reasons andjustifable material that the impugned activity or actionis likely to cause adverse and prejudicial impact on the

maintenance of "public order". Emphasis is laid on"public order" and not "law and order" which belongs tothe realm of general law. After having taken intoaccount the statutory definitions of the personsbranded as "bootlegger" or "dangerous person" underthe PASA Act, and detailed factual matrix of each case,the solitary incident or instance in question in thesepetitions has not been shown or spelt out from therecord as affecting the "public order" or likely to createpublic disturbance or prejudicial or adverse to themaintenance of "public order", and therefore, thecontinued detention of the detenus in each case has notbeen shown to be justifiable, and in this context, inexercise of the powers under Article 226 of theConstitution of India, this Court is left with noalternative in this group of petitions, but to quash andset aside the orders in each matter, with the result thatall the petitions are required to be allowed whilequashing and setting aside the detention orders passedagainst detenus in this group. The view which thisCourt has taken in this group of petitions is alsoreinforced by the observations and directions containedin the latest decision of the Hon ble Supreme Court inthe case of Darpan Kumar Sharma alias DharbanKumar Sharma V/s. State of Tamilnadu and others,reported in (2003)2 SCC 313.”

9. In case of Raju Manubhai Lalu Vs. State of Gujarat& Ors. in Special Civil Application No.2322 of 2019 vide orderdated 03.05.2019, this Court in para-8 has observed that mereselling or possession any Indian made foreign liquor cannot causeor likely to cause any harm, danger, alarm or feeling of insecurityamongst general public or any section thereof.

10. Coordinate Bench of this Court, in case ofVasavaUmeshbhai Laxmanbhai Vs. State of Gujarat & Ors. in para-7has held as under:- “7. Having heard the learned counsel for the parties °and having gone through the grounds of detention, ; inmy opinion, the detaining authority has failed tosubstantiate that the alleged antisocial activities of thepetitioner-detente adversely affect or are likely to affectadversely the maintenance of public order. Just becausea case has been registered against the petitioner:detenue under the Prohibition Act, by itself, does nothave any bearing on the maintenance of public order.The petitioner may be punished for the alleged offencescommitted by him but, surely, the acts constituting theoffences cannot be said to have affected the even tempoof the life of the community much less public health. It .may be that the petitioner-detente is a "bootlegger’within the meaning of Section 2(b) of the PASA Act, butmerely because he is a 'bootlegger’, he cannot bepreventively detained under the provisions of the PASAAct unless, as laid down in sub-section (4) of Section 3of the PASA Act, his activities as a 'bootlegger' affectadversely or are likely to affect adversely themaintenance of public order.”

11. 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 on record, it was not open for the detaining authority to conclude andhence, the subjective satisfaction of the detaining authority isvitiated.

12. 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.

13. In the result, the present petition is hereby allowed andthe impugned order of detention dated 26.10.2023 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.

14. Rule is made absolute accordingly.

Direct service is permitted.

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

SHITOLE

Sd/-(SAMIR J. DAVE,J)