Harishdan vs State

1. This petition has been filed under Article 226 read with Articles 21 and 22(5) of the Constitution of India, with a prayer to quash and set aside order of detention dated 18.12.2009 passed by the Commissioner of Police, Ahmedabad, in exercise of powers under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 ( the Act for short).

2. The detenu has been branded as a 'bootlegger', within the meaning of Section 2(b) of the Act, as he has been found to be involved in offences under the Bombay Prohibition Act.

3. While passing the order of detention, which was executed on the same day, the detaining authority has taken into consideration that two offences under the Bombay Prohibition Act have been registered against the detenu and that the activities carried on by him are detrimental to the maintenance of public order, and prejudicial to public health.

4. I have heard Mr. H.R. Prajapati, learned counsel for the petitioner, Ms. V.S. Pathak, learned Assistant Government Pleader, and perused the averments made in the petition and documents on record.

5. It is submitted by the learned counsel for the petitioner that merely by registration of offences under the Bombay Prohibition Act, it cannot be said that public order has been disturbed by the detenu. Moreover, no statements of witnesses to substantiate these allegations have been recorded by the detaining authority so as to arrive at a subjective satisfaction that the activities of the detenu are detrimental to public order and prejudicial to public health, therefore, the petition may be allowed.

6. The learned Assistant Government Pleader has supported the order of detention and prayed for dismissal of the petition.

7. Having heard the learned counsel for the respective parties and having perused the averments made in the petition as well as the contents of the impugned order, and other documents on record, in the considered view of this Court, in order to arrive at a subjective satisfaction that the activities alleged to be carried on by the detenu, namely `bootlegging', are prejudicial to the maintenance of public order and prejudicial to public health, the detaining authority must rely upon cogent and credible evidence, and material on record. It must be taken into consideration by the detaining authority that the activities of the detenu, either directly or indirectly, are likely to cause harm, danger or alarm, or feeling of insecurity among the general public or a grave danger to life, property or public health. While undertaking this exercise, the detaining authority must draw a clear line between cases falling within the category of breach of law and order, and breach of public order. In the present case, the said exercise does not seem to have been done by the detaining authority, as there is nothing on record to suggest that the activities of the detenu have given rise to a feeling of alarm in the public or posed a grave danger to public order or public health. It cannot be said that merely by registration of offences under the Bombay Prohibition Act, the activities of the detenu are causing insecurity, and fear among the general public or are detrimental to public health or maintenance of public order.

8. The Supreme Court, in Darpan @ Dharban Kumar Sharma v. State of Tamil Nadu and Ors. (2003)2 SCC 313 has laid down that there should be material on record to show that the incidence and activities of the detenu are so grave as to disturb the even tempo of life of the community in the locality, or disturb the general peace and tranquility, or create a sense of alarm and insecurity in the locality.

9. Having perused the contents of the impugned order of detention and the documents annexed to the petition, there is no material on record to indicate that the activities of the detenu fall in this category. The registration of prohibition cases by itself cannot be considered to be a breach of public order, and nor is there any material on record to show that the same has adversely affected the maintenance of public order.

10. In view of the above, the petition is allowed. The impugned order of detention dated 18.12.2009 passed by the Commissioner of Police, Ahmedabad, is 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 is permitted.

(SMT.

ABHILASHA KUMARI, J.) Umesh/ Top