Gujarat High CourtVashrambhai vs State on 19 September, 2008Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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SCA/9665/2008	 7/ 9	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

SPECIAL
CIVIL APPLICATION No. 9665 of 2008
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MS.JUSTICE H.N.DEVANI
 
 
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1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ?
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To
			be referred to the Reporter or not ?
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ?
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ?
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil judge ?
		
	

 

 
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VASHRAMBHAI
NATHABHAI DANGAR - Petitioner(s)
 

Versus
 

STATE
OF GUJARAT & 2 - Respondent(s)
 

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Appearance : 
MR
HR PRAJAPATI for Petitioner(s) : 1, 
MR SATYAM
CHHAYA, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1, 3, 
RULE
SERVED BY DS for Respondent(s) : 1 -
2. 
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CORAM
			: 
			
		
		 
			 

HONOURABLE
			MS.JUSTICE H.N.DEVANI
		
	

 

 
 


 

Date
: 19/09/2008 

 

 
 
ORAL
JUDGMENTBy
	this petition underArticle 226of the Constitution of India, the
	petitioner has challenged the order of detention dated 9th
	March, 2008 passed by the District Magistrate, Bhavnagar in exercise
	of powers under sub-section (2) ofSection 3of the Gujarat
	Prevention of Anti Social Activities Act, 1985 (thePASA Act),
	ordering that the petitioner to be detained to prevent him from
	acting in a manner prejudicial to the maintenance of public order.
	The order was executed on the same day.  The petitioner is, thus,
	detained under the Act since 9th March, 2008. The
	petitioner has made a representation dated 17th March,
	2008 to the District Magistrate, Bhavnagar against the order of
	detention.Pursuant
	to the filing of the petition, Rule was issued on the petition on
	30th July, 2008.  However, neither the detaining
	authority nor the State Government have filed any counter to the
	petition.The
	impugned order of detention is challenged on various grounds. 
	However, the main ground for challenging the said order is that
	there is no material on record on the basis of which, the detaining
	authority could arrive at the subjective satisfaction that the
	petitioner was acting in a manner prejudicial to the maintenance of
	public order.The
	grounds of detention which are annexed to the detention order show
	that on the date of passing of the detention order, a solitary
	criminal case registered on 6th February, 2008 was
	pending against the petitioner underSections  66B,65(AE),81,116(B)and98(d)of the Bombay Prohibition Act, 1949.After
	referring to the aforesaid criminal case, the detaining authority
	has stated that he has made a detailed indepth study of the
	offences.  That the police have apprehended a large stock of Indian
	Made Foreign Liquor from the petitioner and his accomplices.  That
	in view of the antisocial activities of the petitioner of indulging
	in the unlawful business of liquor, the same is likely to have an
	adverse effect on the community.  Thus, the petitioner by carrying
	on illegal activities is prejudicially affecting the maintenance of
	public health and public order.  Thus, the petitioner is carrying on
	the unlawful business of liquor in a manner whereby the same is an
	obstacle to the maintenance of public health and public order.  That
	the petitioner does not pursue any respectable mode of livelihood. 
	The petitioner brings large quantities of English Liquor and sells
	the same.  Deals in liquor and hoards loquor.  That his activities
	have increased very much.  Police have carried out raid and have
	registered a case, however, upon being enlarged in connection with
	the offence, the petitioner is likely to again carry on the business
	of Indian Made Foreign Liquor.  That the illegal activity of the
	petitioner of carrying on the unlawful business of English liquor is
	prejudicial to the maintenance of public health and public order. 
	The detaining authority has, accordingly, arrived at the subjective
	satisfaction that, with a view to prevent the petitioner form in any
	manner carrying out the activities which are prejudicial to the
	public health and public order, it was necessary to detain the
	petitioner.  The detaining authority has thereafter recorded reasons
	as to why it was not feasible to resort to provisions of other
	statutes to prevent the petitioner from carrying on such activities.
	 The detaining authority has further recorded that the activities of
	the petitioner of unlawfully selling liquor had a very wide spread
	effect and such activities of the petitioner and his accomplices
	could not be prevented under other provisions of law.  That with a
	view to prevent the petitioner from carrying out unlawful activities
	which were prejudicial to the public health and public order, the
	detaining authority was satisfied that the petitioner was to be
	detained as a bootlegger underSection 2(b)of the Act in exercise
	of powers underSection 3(2)of the PASA Act.  On the basis of the
	aforesaid observations, the order of detention has been passed.Heard
	the learned advocates for the parties.A
	perusal of the entire grounds of detention clearly shows that the
	only ground for arriving at the subjective satisfaction that the
	activities of the petitioner are prejudicial to the maintenance of
	public health and public order, is that the petitioner is a
	bootlegger.  Though the detaining authority has recorded that the
	activities of the petitioner are wide spread and that the unlawful
	activities of the petitioner had increased to a great extent, there
	is no material whatsoever on record to substantiate such a  finding.
	The documents supplied with the order of detention are only in the
	nature of statements of the police officers who had participated in
	the raid carried out, on the basis of which the solitary offence had
	been registered against the petitioner under the provisions of theBombay Prohibition Act.  There is no other evidence worth the name,
	on record to substantiate the aforesaid findings recorded by the
	detaining authority.  Merely on the basis of the fact that a
	solitary offence under theBombay Prohibition Acthas been
	registered against the petitioner, the detaining authority has
	arrived at the subjective satisfaction that the activities of the
	petitioner are prejudicial to the maintenance of public health and
	public order.  Insofar as the activities of the petitioner being
	prejudicial to the public health, there is nothing on record to show
	as to how the activities of the petitioner are prejudicial to public
	health, or that the activities of the petitioner are causing or
	likely to cause wide spread danger to life or public health.  The
	only reason given is that the petitioner is carrying on the unlawful
	business of selling Indian Made Foreign Liquor.  Thus, according to
	the detaining authority, the activity of selling Indian Made Foreign
	Liquor, per se, amounts to an activity that is prejudicial to the
	maintenance of public order and public health.It
	is settled legal position as held by the Supreme Court in the case
	ofPiyush Kantilal Mehta v. Commissioner of Police, Ahmedabad
	City and another, 1989 Supp (1) SCC 322 that in order that
	an activity may be said to affect adversely the maintenance of
	public order, there must be material to show that there has been a
	feeling of insecurity among the general public. If an act of a
	person creates panic or fear in the minds of the members of the
	public upsetting the even tempo of life of the community, such act
	must be said to have a direct bearing on the question of maintenance
	of public order. The commission of an offence will not necessarily
	come within the purview of ??public order?". On the facts of the
	said case the petitioner therein was detained on the ground that he
	was a bootlegger and that some incidents of beating by the
	petitioner had taken place, as alleged by witnesses. According to
	the Supreme Court the said incidents did not have any bearing on the
	maintenance of public order. It was further held that:?SThe
petitioner may be punished for the alleged offences committed by him
but, surely, such acts constituting the offences cannot be said to
have affected the even tempo of life of the community. It may be that
the petitioner is a bootlegger within the meaning ofSection 2(b)of
the Act, but merely because he is a bootlegger he cannot be
preventively detained under the provisions of the Act unless, aslaid
down insub-section (4) ofsection 3of the Act, his activities as
bootlegger affect or are likely to affect adversely the maintenance
of public order. We have carefully considered the offences alleged
against the petitioner in the order of detention and also the
allegations made by the witnesses and, in our opinion, these offences
or the allegations cannot be said to have created any feeling of
insecurity or panic or terror among the members of the public of the
area in question giving rise to the question of maintenance of public
order. The order of detention cannot, therefore, be upheld.??A
	Division Bench of this Court vide judgement and order dated 22nd
	August, 2000 rendered in the case of Ashokbhai Balabhai
	Makwana v. State of Gujarat, Letters Patent Appeal No.223 of 2000,
	after considering the decision of the Supreme Court in the case ofKanuji S. Zala v. State of Gujarat, 1999 (2) GLH 415
	held that a bald observation that the activities of the petitioner
	were an obstacle to public health and public order cannot be taken
	to be decisive so as to arrive at the satisfaction that the
	activities of the petitioner were prejudicial to the public order or
	public health and that tempo of public life was disturbed. TheCourt
	further heldthat the litmus test to find out whether it is a case
	of breach of public order or breach of public health is that
	credible material has to be there. In the facts of the said case,
	apart from the allegation that the petitioner was a bootlegger based
	on some registered cases, there were some unregistered cases and
	statements of anonymous witnesses against the petitioner therein. 
	The Court held thus:?SThus,
the only material which remains is the registered criminal cases and
that by itself cannot be said to be a material for the purpose of
holding that the appellant's activities had become a threat to the
public order and public health.  Necessary material in this regard is
totally wanting in the body of the detention order itself.  In large
number of cases, the Supreme Court has considered that involvement in
bootlegging activities  even if coupled with violence does not amount
to threat to public order or public health.  The mere mention of
allegations unless they are supported by any material cannot be said
to be material germane for the purpose of arriving at the
satisfaction with regard to breach of public order or public health.??On
	the facts of the present case, a perusal of the detention order
	shows that after giving particulars of the criminal cases registered
	against the petitioner, the detaining authority has simply observed
	that the petitioner's activities were in the nature of hindrance to
	the public health and public order, without there being any credible
	material in support thereof.  Thus, there is no material on record
	except the solitary criminal case registered against the petitioner
	under the provisions of theBombay Prohibition Act.As
	held by the Supreme Court as well as this Court in the decisions
	cited hereinabove, mere registration of a criminal case by itself
	cannot be said to be a material for holding that the petitioner's
	activities have become a threat to the public order or public
	health.  The subjective satisfaction arrived at by the detaining
	authority for the purpose of passing the order of detention being
	based upon no evidence, the order of detention cannot be sustained.For
	the foregoing reasons, the petition succeeds and is, accordingly,
	allowed.  The impugned order of detention dated 9th
	March, 2008 passed by the District Magistrate, Bhavnagar in exercise
	of powers under sub-Section (2) ofSection 3of the PASA Act against
	the petitioner ?  Shri Vashrambhai Nathabhai Dangar, is hereby
	quashed and set aside.  The petitioner shall be set at liberty
	forthwith if not required in any other case.  Rule is made absolute
	accordingly with no order as to costs.Direct
	service is permitted.[HARSHA
DEVANI, J.]
 

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