Amankhan vs State Of Gujarat

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2261 of 2007 For Approval and Signature:

HONOURABLE MR.JUSTICE AKIL KURESHI =====================================================

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 ?

Whether this case involves a substantial question of law as to the

4 interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

===================================================== AMANKHAN. S/O JAFARKHAN PATHAN - Petitioner(s) Versus STATE OF GUJARAT NOTICE TO BE SERVED UPON & 2 -

Respondent(s) ===================================================== Appearance :

MS KRISHNA U MISHRA for Petitioner, MR AY KOGJE AGP for Respondent : 1, RULE SERVED for Respondent(s) : 2 - 3.

===================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/05/2007 ORAL JUDGMENT The petitioner has been placed under preventive detention by the Commissioner of Police, Ahmedabad City by an order dated 7.12.2006 in exercise of powers under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA”).

2. The authority while passing the said order had taken into consideration a criminal case involving the petitioner, arising out of a complaint bearing Prohibition Case No. 5476 of 2006 dated 2nd December, 2006, in which the petitioner was found to be carrying 120 liters of country-made liquor. Having taken into consideration the said complaint and the statements recorded by the police during investigation, the detaining authority was of the opinion that it is necessary to place the petitioner under preventive detention to prevent her from committing acts prejudicial to the public order.

3. Having heard the learned advocates appearing for the parties, I find that it is not in dispute that for passing the order of detention the authorities took into consideration one isolated incident of bootlegging and that there was no further additional material to permit the authority to form the opinion that the activities of the petitioner are prejudicial to public order.

4. It may be that the petitioner can be categorised as bootlegger and that his activities may raise question of law and order, the question is whether the same would be prejudicial to the public order.

5. This question was considered by this Court in the order dated 26.4.2007 passed in Special Civil Application No. 5557/07 in which following observations were made:

5.1. Reliance in this regard was placed on the decision in the case of Ashokbhai Jivraj @Jivabhai Solanki v. Police Commissioner, Surat & Ors. reported in 2000(1) GLH 393, wherein the Division Bench placing reliance on an earlier Division Bench decision of this Court in the case of Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad and Anr reported in 1992(2) GLR 1360, observed that cases against the detenu have already been registered and the case would fall under the maintenance of “law and order and not public order”. The Division Bench, therefore, opined that the subjective satisfaction arrived at by the detaining authority was illegal since the detention could have been passed by the authority for maintenance of public order. On this basis, the Division Bench was pleased to quash the order of detention.

5.2. Reliance was placed on the decision of Piyush Kantilal Mehta v.

Commissioner of Police, Ahmedabad City and Anr. reported in AIR 1989 SCC 491, wherein the Apex Court observed that, may be that the detenu is a bootlegger but only on that count he could not be preventively detained unless his activities affect adversely or is likely to affect adversely the maintenance of public order. In the said case, it was alleged that not only the detenu was a bootlegger, he was indulging in use of force and violence, he was involved in illegal sale of liquor and created an atmosphere of fear and terror by beating innocent citizens. The Apex Court observed that apart from some minor incidents of beating by the detenu the witnesses alleged that the detenu was high handed and fierce by nature. It was held that the detention order cannot be upheld as this would not be a case of adversely affecting public order.

5.3. Reliance was also placed on the decision of the learned Single Judge of this Court in the case of Rajubhai Pratapbhai Panpatil vs. Commissioner of Police, Surat City and Ors. reported in 2006(1) G.L.H. 382, wherein the learned Judge found that mere registration of prohibition offence is not enough to arrive at the subjective satisfaction that the activities of the detenu are prejudicial to maintenance of public order.

5.4. Reliance was placed on the decision of the Apex Court in the case of District Collector, Ananthapur and Anr. v. V.Laxmanna reported in (2005) 3 SCCC 663, wherein the Apex Court observed that mere dealing with arrack or transport or sale thereof by itself would not become an activity prejudicial to the maintenance of pubic order and before ordering detention the authority must be satisfied on material available to it that the arrack dealt with by the detenu is dangerous to public health.

7. Having heard learned advocates for the parties, I find that the contention raised by the learned advocate for the petitioner is required to be upheld. In the present case except for six cases of bootlegging filed against the petitioner there is no further material permitting the detaining authority to come to the conclusion that her activities were prejudicial to the interest of public order. As noted earlier three out of these six cases were filed in the year 2005, whereas the order of detention was passed in the December, 2006. Quite apart from the time gap in taking into consideration the stale cases, I find that as observed by the Division Bench of this Court in the case of Ashokbhai Jivraj @Jivabhai Solanki v. Police Commissioner, Surat & Ors (supra) mere involvement of a detenu in activities of bootlegging per se would not permit the authority to come to a conclusion that her activities were prejudicial to the public order. This view has also been followed subsequently and is also supported by the decision of the Apex Court in the case of Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and Anr.(supra).

6. I have no hesitation in declaring the detention illegal, since I find that the authorities have formed its opinion which cannot be sustained in the eye of law.

7. In the result, the petition is allowed. The order of detention, therefore fails and is hereby quashed. Rule is made absolute. No order as to costs.

8. Since the petition is being allowed and the detention order is quashed, it is further directed that the detenu shall be released forthwith if there is no other detention or criminal case against him.

Direct service is permitted.

[AKIL KURESHI, J.] //smita//