tion Criminal No 395 of 1988
Under Article 32 of the Constitution of India
Miss Kamini Jaiswal and SC Patel for the Petitioner
TU Mehta and MN Shroff for the Respondents
The Judgment of the Court was delivered by RATNAVEL PANDIAN J
This writ petition under Article 32 of the Constitution of India is filed by the petitioner the detenu herein canvassing the correctness of the detention order dated 30888 made by the detaining authority namely Commissioner of Police Ahmedabad city in exercise of the powers conferred on him under sub Section 1 of Section 3 of the Gujarat Prevention of Anti social Activities Act 1985 hereinafter referred as the Act with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city
In pursuance of the above order the detenu is detained in the Central Jail  Sabarmati
The detenu has been furnished with the copies of the grounds of detention and all other material documents inclusive of the statements of the wit nesses on the basis of which the detaining authority reached his subjective satisfaction for passing this impugned order
The sum and substance of the alleged activities of the detenu 185 mentioned in grounds of detention are that the detenu was indulging in criminal and anti social activities in the area of Dariyapur Kalupur of Ahmedabad city by illegally storing and selling foreign liquor and beer either personally or through his associates and that in this regard the following four cases were registered under the provisions of the Bombay Prohibition Act of 1949
We reproduce that relevant portion giving the details of the cases as found in the grounds of detention Sr
No Police CR No Section Qty Disposals Station Seized 1 Kalupur 13088 Prov
66B 8 Ltr
beer Pending in court 2
Kalupur 15288 500 ML beer order pending 3
Kalupur 15688 268 bottle Pending in foreign and Court 122 bottle box 4
Dariyapur 8088 Prov
66B foreign order pending 65A81 liquor From the above materials the detaining authority has concluded that the detenu was a bootlegger within the mean ing of Section 2b of the Act
It is further stated that the detenu besides indulging in the activities of bootlegging he and his companions were creating terror in that area by beating innocent people in public in Ahmedabad city which in turn affected adversely the maintenance of public order
Further it is stated that the detenu and his associates always armed with dangerous weapons like bombs cartridges etc
were threatening the people in the city of Ahmedabad in respect of which a case has been registered which is re produced as set out in the grounds of detention section No Police Station CR No Section Disposal 1 Kalupur 288 IPC 307 120B Under 212 Terrorist inquiry Act Sec
313 186 Explosive Sec 4 5 Arms Act 251Ac Bombay Police Act 1351 In addition to the above it is alleged that the detenu being the main member of the gang of Abdul Latif Abdul Wahab Shaikh entered into a conspiracy to spread an atmosphere of fear and terror among the residents of that area and also a sense of insecurity among the people
On the above materials mentioned in the grounds of detention the detaining authority has come to the conclu sion that the detenu is a dangerous person  within the meaning of Section 2c of the Act
Thus the detaining authority has found that the detenu was not only a bootlegger  but also a dangerous person  within the definitions of Section 2b and 2c of the Act
For drawing the above conclusion the detaining authority has also relied upon the statements of the witnesses whose names are not disclosed
Assailing the legality of the impugned order the learned counsel appearing on behalf of the petitioner put forth several contentions one of which being that the conclusions drawn by the detaining authority that the detenu is a bootlegger  as well as a dangerous person  are not sup ported by the materials placed before him and that there is nothing to show that the activities of the detenu either affected or were likely to affect adversely the maintenance of public order
We shall now deal with the above contention in the light of the construction of the expressions bootlegger  and dangerous person  read with Section 34 of the Act with the explanation annexed thereto
The expression bootlegger and dangerous person occurring in Section 2b and c of the Act read as fol lows 2b bootlegger means a person who distills manufac tures stores transports imports exports sells or dis tributes any liquor intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act 1949 Bom
XXV of 1949 and the rules and orders made thereunder or any other law for the time being in 187 force or who knowingly expends or applies any money or supplies any animal vehicle vessel or other conveyance or any receptacle or any other material whatsoever in further ance or support of the doing of any of the things described above by or through any other person or who abets in any other manner the doing of any such thing 2c dangerous person means a person who either by himself or as a member of or leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code XLV of 1860 or any of the offences punishable under Chapter V of the 54 of 1959
 To bring the detenu herein within the definition of Section 2b of the Act four cases are made mention of in the grounds of detention which we have already extracted
All the four cases were registered in the year 1988
The trials in respect of two of the four cases were pending before the Court and in respect of the other two the orders were pending
Notwithstanding the result of those cases and the quantity of liquor seized from the detenu we shall examine the legality of the detention order in the ensuing part of this judgment even assuming that the detenu is a bootlegger  within the ambit of Section 2b of the Act
For the conclusions drawn by the detaining authority that the detenu was a dangerous person  as defined under Section 2c of the Act the detaining authority has taken into consideration the registration of a case in crime number 288 in Kalupur police station
Added to that it is generally stated in the grounds of detention that the detenu and his associates were beating the people in public and that the detenu had entered into a conspiracy to spread an atmosphere of fear and terror in the city of Ahmedabad city being the main member of the gang of Abdul Latif Abdul Wahab Shaikh
But no specific instance is given either in the grounds of detention order or in any of the statements of the witnesses
To bring a person within the definition of Section 2c of the Act it must be shown that the person either by him self or as a member of or a leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code or any of the offences punishable under 188 Chapter V of the 
In the case registered in crime No 288 in Kalupur police station the detenu is said to have committed offences under Sections 307 120 B 212 of the Indian Penal Code and Section 25 of the besides under the provisions of various other Acts
Though Section 307 falls under Chapter XVI the offences under Sections 120 B and 212 fall under Chapters VI and XI of the Indian Penal Code respectively
Therefore these two offences are not covered under Section 2c
The offence registered under Section 25 of the falling under Chapter V of the said Act is included within the said definition clause
But what the section requires is that to bring a person within that definition it must be shown that he is habitually committing or attempting to commit or abetting the commis sion of offences enumerated therein
In the instant case the registration of only one case is mentioned under the provisions of Section 307 of IPC and 25 of the falling within the said definition clause
Therefore this solitary incident would hardly be sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of offences
The general and vague allegations made in the grounds of detention that the detenu was taking active part in communal riots and entered into conspiracy to spread an atmosphere of terror being a member of the gang of Abdul Latif Abdul Wahab Shaikh in the absence of any specific instance or registration of any case thereof cannot be construed as offences falling under any of the above three chapters of the IPC or Chapter V of the enumerated under Section 2c so as to characterise the detenu as a dangerous person 
Hence we are of the view that the conclusions drawn by the detaining authority that the detenu is a dangerous person is bereft of sufficient material as required under Section 2c
Therefore we hold that the detenu cannot be termed as a dangerous person 
No doubt as per Section 6 of the Act grounds of deten tion are severable and as such the order of detention should not be deemed to be invalid or inoperative if one or some of the grounds are invalid
In the present case the question for consideration is that even if the impugned order cannot be sustained on the ground that the detenu is a dangerous person  can it be sustained on the other ground that the detenu is a bootlegger 
The answer is that the order could be sustained provided there are materials to show that the bootlegging activities of the detenu affected adversely or were likely to affect the maintenance of public order
A conjoint reading of Section 2b and Section 34 with the explanation annexed thereto clearly spells out 189 that in order to clamp an order of detention upon a boot legger  under Section 3 of the Act the detaining authority must not only be satisfied that the person is a bootlegger within the meaning of Section 2b but also that the activi ties of the said bootlegger affect adversely or likely to affect adversely the maintenance of public order
Reverting to the facts of this case the vague allegations in the grounds of detention that the detenu is the main member of the gang of Abdul Latif Abdul Wahab Shaikh indulging in bootlegging activities and that the detenu is taking active part in such dangerous activities are not sufficient for holding that his activities affected adversely or were likely to affect adversely the maintenance of public order in compliance with subSection 4 of Section 3 of the Act that the activities of the detenu have caused harm danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or widespread danger to life property or public health as per the explanation to Section 34
The offences registered in the above mentioned four cases against the detenu on the ground that he was dealing in liquor have no bearing on the question of maintenance of public order in the absence of any other material that those activities of the detenu have adversely affected the mainte nance of public order
There is a catena of decisions dealing with the question of maintenance of public order 
But we think that it will be sufficient to make reference to the following two deci sions
This Court in Ashok Kumar vs Delhi Administration 1982 SCC 403 has observed It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order In a recent decision of this Court in Piyush Kantilal Mehta vs The Commissioner of Police Ahmedabad City and Anr Judgments Today 1988 4 703 a question similar to one before us arose for consideration
In that case the allega tions in the grounds of detention were that the detenu was a prohibition bootlegger that he was indulged into the sale of foreign liquor and that he and his associates indulged in use of force and violence and also beating innocent citizens by which an atmosphere of fear was created
In that case the detenu was alleged to have been caught red handed possessing English wines with foreign marks and in the second occasion he was caught while shifting 296 190 bottles of foreign liquor in an Ambassador car
While deal ing with that case this Court observed as follows It is true some incidents of beating by the petitioner had taken place as alleged by the witnesses
But such inci dents in our view do not have any bearing on the mainte nance of public order
The petitioner may be punished for the alleged offences committed by him but surely the acts constituting the offences cannot be said to have affected the even tempo of the life of the community
It may be that the petitioner is a bootlegger within the meaning of Section 2b of the Act but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless as laid down in sub section 4 of Section 3 of the Act his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order
 The above observation in our view will be squarely applicable to the facts of this case in view of the rea sons we have already adverted to in the earlier portion of this judgment
Hence for all the reasons aforesaid we allow the Writ Petition and quash the impugned order of detention and direct the detenu to be set at liberty forthwith
TNA Petition allowed


Summary:
The respondents who were non graduate Excise Preventive Officers in the Excise Department had challenged in the High Court the amendment made to the original Special Rule 2 of the Special Rules for the Kerala Excise and Prohibition Subordinate Service whereby the ratio of 13 between gradu ates and non graduates was introduced in the matter of promotion from the category of Excise Preventive Officers to that of Second Grade Excise Inspectors
They had contended that as graduates and non graduates were both regarded as eligible for promotion to the post of Second Grade Excise Inspectors
no differentiation should have been made between them when prescribing a rule of quota for promotion
The learned Single Judge allowed the writ and held that the amendment to Special Rule 2 was violative of Articles 14 and 16 of the Constitution
The State of Kerala and the private appellants who were graduate Excise Preventive Officers and were holding the post of Second Grade Excise Inspectors
filed appeals
It was contended by them before the Division Bench that i the preference shown to gradu ates in the matter of promotion represented the recognition of graduation as a standard of merit which would promote administrative efficiency and ii the amendment to Special Rule 2 was the result of a historical background which justified preferential treatment
It was pointed out that as graduates and non graduates had all along been 202 treated differently in the matter of promotion to the post of Excise Inspector the classification brought about by amending Special Rule 2 could not be regarded as unreasona ble
The Division Bench held that the amendment to Special Rule 2 of the Kerala Excise  Prohibition Subordinate Serv ice Rules was ultra vires
Dismissing the appeals this Court HELD 1 The history of the evolution of the Kerala Excise and Prohibition Subordinate Service has shown no uniformity either in approach or in object
The history has varied with the circumstances prevailing before and after the reorganisation of the State
The conditions pertaining to the service
and respecting which the constitution of the service varied from time to time showed fluctuations
A consistent or coherent policy in favour of graduates was absent
This is not a case where the cadre of officers was kept in two separate divisions
It was a single cadre and they were all equal members of it
There is no evidence that graduate Preventive Officers enjoyed higher pay than non graduate Preventive Officers208E G Mohammad Shujat All 
vs Union of India  and Col AS Iyer vs V Balasubramanyam   distinguished
2 The Conditions of employment and the incidents of serv ice the instant case recognise no distinction between graduate and non graduate Officers and for all material purposes they are effectively treated as equivalent
The nature of the duties of Preventive Officers whether graduate or non graduate was identical and both were put to field work
Non graduate Preventive Officers were regarded as competent as graduate Preventive Officers
There is no evidence of any special responsibility being vested in graduate Preventive Officers
208H 209A E State of Jammu  Kashmir vs Triloki Nath Khosa   SL Sachdev vs Union of India 1980 1 SCR 971 distinguished
HH Shri Swamiji of Shri Admar Mutt vs Commissioner Hindu Religious  Charitable Endowment Department  and Motor General Traders vs State of Andhra Pra desh   referred to
3 Ordinarily it is for the Government to decide upon the considerations which in its judgment should underlie a policy to be 203 formulated by it
But if the considerations are such as prove to be of no relevance to the object of the measure framed by the Government
it is always open to the Court to strike down the differentiation as being violative of Arti cles 14 and 16 of the Constitution
209D E 4 The learned Single Judge as well as the Division Bench were right in holding that the prescription of a ratio dividing the quota of promotion between graduate Preventive Officers and non graduate Preventive Officers is invalid on the ground that it violates Articles 14 and 16 of the Con stitution
209B C