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Vimal vs Commissioner

High Court Of Gujarat|10 May, 2010
1. Leave to amend. Heard learned advocate for the petitioner and learned AGP for the respondents.
2. The petitioner-detenue has preferred this petition, under Article 226 of the Constitution of India, for appropriate writ, order or direction for quashing and setting aside the impugned order dated 5.11.2009 passed by the respondent No.1-Commissioner of Police, Surat City, in exercise of power under sub-section(1) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 ( PASA Act for short) whereby the detenue has been detained as a bootlegger . In pursuance of the said impugned order, the detenue is detained in Jail, Bhuj on 12.11.2009.
3. Along with the detention order, the petitioner detenu has been supplied with the grounds of detention. From the grounds of detention, it appears that only one offence being III-CR No.243 of 2009 under the provisions of Sections 66(1)B, 65EA, 81 and 116B under the Bombay Prohibition Act was registered with Puna Police Station, wherein a quantity of total 2191 bottles of foreign liquor was found from the possession of the detenue. The accused was not arrested on the spot, but subsequently on the basis of the statements of the co-accused, he was arrested. On the basis of registration of this case, the detaining authority held that the present detenue was carrying on activities of selling liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenue is indulged in illegal activities, it is required to restrain the detenu from carrying out further illegal activities, i.e. selling of liquor. The detaining authority has placed reliance on the above registered offence and statements of unnamed witnesses. In the opinion of this Court, the activities of the detenue can, by no stretch of imagination, be said to be disturbing the public order. It is seen from the grounds that a general statement that has been made by the detaining authority that consuming liquor is injurious to health. In fact, a perusal of the order passed by the detaining authority shows that the grounds which are mentioned in the order are in reference to the situation of law and order and not public order . Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.
4. Except the statements of some anonymous witnesses, there is no material on record which shows that the petitioner-detenue is carrying on activities of selling liquor which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat [(2001)(1)GLH 393)], having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this Court held that the cases wherein the detention order passed on the basis of the statements of the witnesses falls under the maintenance of law and order and not public order .
5. Applying the ratio of the above decisions, it is clear that before passing an order of detention of a detenue, the detaining authority must come to a definite finding that there is threat to the public order and it is very clear that the present would not fall within the category of threat to public order . In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.
6. The petition is allowed. The impugned order of detention dated 5.11.2009 passed against the detenu is hereby 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.
(M.D.Shah, J.) pathan Top
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