ubt the order of dete n tion contains fresh facts
In addition the detaining a u thority has taken into consideration the earlier grounds of detention which grounds had been nullified by the High Cou rt by issuing a prerogative writ of habeas corpus
A copy of the earlier grounds of detention was also one of the doc u ments furnished to the detenu which confirms the fact th at the detaining authority has considered the earlier groun ds of detention alongwith other documents for drawing h is requisite subjective satisfaction for passing the detenti on order
The order of detention is vitiated on that groun d and is therefore liable to be set aside
58F G 59F G  ORIGINAL JURISDICTION Writ Petition Criminal No 61 of 1989
Under Article 32 of the Constitution of India  VV Vaze MK Pandit and PH Parekh for the Petitioner
PS Poti MN Shroff and Mrs H Wahi for the Respondent section The Judgment of the Court was delivered by 54 section RATNAVEL PANDIAN J
This petition under Article 32 of the Constitution of India is filed by the petitioner t he detenu herein challenging the legality and validity of t he order of detention dated 21101988 passed by the detaini ng authority the Commissioner of Police Surat City clampi ng upon the detenu the above said order of detention und er Sub section 2 of Section 3 of the Gujarat Prevention of Anti social Activities Act 1985 hereinafter referred to as the Act  on the ground that he on consideration of t he materials placed before him was satisfied that it was nece s sary to make the said order with a view to preventing t he detenu from acting in any manner prejudicial to the maint e nance of public order in the area of Nanpura Machhiw ad falling under the jurisdiction of Athwa Lines Police St a tion Surat City and directed the detenu to be detained in Sabarmati Central Prison Ahmedabad under the conditio ns specified in the Gujarat Prevention of Anti Social Activ i ties Order 1985
In pursuance of the impugned order t he detenu has been detained in the aforesaid prison
The second respondent the State of Gujarat approv ed the impugned order on 26101988 and confirmed the same on 1312 
The detenu submitted his representation dat ed 1512
1988 which was received by the 1st respondent on 1912
1988 on which date itself the same was rejected
T he copy of the representation sent to the second respondent w as rejected on 21121988
It is stated in the grounds of detention that the dete nu was illegally keeping in possession the country liquor a nd openly selling the same at the comer of Nanpura Machhiwa d Masjid Wali Gali Bhandariwad and conducting a den Add a and that he had been arrested in 1988 for offences under t he Bombay Prohibition Act in respect of which number of cas es were registered which cases are still pending trial as disclosed in Annexure I
It is further stated that t he detenu had engaged 10 persons whose names are given in paragraph 2 of the grounds of detention to accelerate h is bootlegging activities and those hired persons who we re conducting den Addaunder the instructions and guidance of the detenu had been arrested in 1988 in 19 different cas es under the Bombay Prohibition Act from the detenu s ad da during police raids of which 8 cases are pending trial a nd the remaining eleven are under investigation the details of which are given in Annexure 11 attached to the grounds of detention
On the above materials and the statements of witnesses placed before him the detaining authority h ad satisfied himself that the abovementioned bootlegging acti v ities of the detenu in a large scale in an organised mann er were seriously detrimental to the public health and we re likely 55 to endanger public health and consequently passed th is impuged order of detention
Hence this writ petition
Mr VV Vaze learned counsel appearing on behalf of the petitioner detenu raised several contentions assaili ng the legality and validity of the order of detention one of which being that the detaining authority for drawing h is requisite subjective satisfaction to clamp this order of detention upon the petitionerdetenu had taken into consi d eration the previous grounds of detention which was t he subject matter of Special Criminal Application No 46 of 1987 before the High Court of Gujarat
Since we are inclin ed to dispose of this Writ Petition on this ground alone we a re not traversing on other grounds
Admitedly the Commission er of Police Surat City passed an Order of detention
Und er Section 32 of the Act on 21
1987 in No PCB PASAI 87 on the ground that between 1984 to 1986 there were 19 cas es filed against the detenu under the Bombay Prohibition Act of which 16 were pending in Court and three others under inve s tigation when this previous order was passed
The petition er filed Special Criminal Application No 46 of 1987 before t he High Court of Gujarat at Ahmedabad challenging the validi ty of the said order
The High Court by its judgment dated 3
8 1987 quashed the earlier impugned order of detention a nd directed the release of the detenu forthwith
A copy of t he High court order is annexed to the Writ Petition as Annexu re D 
The detaining authority in this case had made a refe r ence about the previous order in the impugned grounds of detention which reads thus You are associated with bootlegging activity for long tim e therefore under order number dated 2187 you were order ed to be detained under PASA and were kept in Baroda Centr al Jail
But you filed a petition against this order of dete n tion in the High Court by Special Criminal Misc
Applicati on No 461987 After this petition was heard on 3887 t he Hon ble High Court quashed the detention order and releas ed you from detention
The proceedings taken against you ha ve had no effect on you and after you were released from t he detention you have continued your activity
 The detenu presumably based on the above statement h as stated in his writ petition that the present order of dete n tion is clamped upon him since the earlier order passed on 21 1987 had been quashed and set aside
The detaini ng authority in attempting to reply 56 to the allegations made in paragraph No 6 of the Wr it Petition wherein it is averred The petitioner states th at in some of the cases the petitioner is acquitted and in none of the cases the petitioner is convicted till today  has made the following statement in paragraph 9 of h is counter It is submitted that the present detaining authority to ok into consideration the previous grounds of detention also to establish that the petitioner was engaged in bootleggi ng activities since long
 Now on this above statement it has been streneous ly urged that since the detaining authority for drawing h is subjective satisfaction had taken into consideration all t he previous grounds of detention namely the earlier groun ds of detention passed on 21 1987 which had been subsequent ly quashed by the High Court the present detention order is liable to be set aside
According to learned counsel for t he petitioner once the previous grounds of detention had be en quashed on its merit then the detaining authority has no justification to take into consideration the earlier groun ds of detention for passing this present detention order whi ch should have been based only on the fresh grounds that we re available subsequent to the quashing of the previous dete n tion order
In support of this statement several decisio ns were relied on about which we make reference presentl y
Firstly the attention of the Court was drawn to Ghul am Nambi Zaki vs State of Jammu and Kashmir wherein the State contended that the existence of fre sh material is not a condition precedent for passing the seco nd order and that in any event the second order can be ma de when the first order is withdrawn or revoked for technic al defect
Hidayatullah CJ speaking for the bench repell ed that contention holding thus The matter is not res integra
In a number of decisions of this Court to which reference will be made presently th is point has been considered and it has been held that once an order of revocation is made another order detaining t he same person can only be passed if some additional or fre sh material is in possession of the State Government on whi ch action can be based
 Then referring to the decision of the Constitution Ben ch in Hadibandhu Das vs District Magistrate Cuttack and Anot h er   the learned Chief Justice observed 57 In other words the revocation or expiry of the previo us order cannot lead ipso facto to a revival of the detenti on by the passing of a fresh order because a person who is entitled to his liberty can only be put in a second jeopar dy when there are additional or fresh facts against him Ultimately he concluded As pointed out in the All India Reporter case Hadiband hu Das case the inference is very compulsive that fresh fac ts must be found for new orders otherwise once the old dete n tion comes to an end either by the expiry of the period of detention or by the cancellation of the order of detentio n a fresh detention cannot be ordered In Har Jas Dev Singh vs State of Punjab  Ors   this Court while examining a similar question wi th regard to validity of second detention order passed und er Section 142 of the Maintenance of Internal Security A ct Act 26 of 1971 on identical grounds of the earlier ord er expressed its view In these circumstances after the date on which the ord er cease to be in force unless fresh facts have arisen on t he basis of which the Central Government or State Government or an Officer as the case may be was satisfied that such an order should be made the subsequent detention on the ve ry same grounds would be invalid The learned counsel also cited for the same principle of law the decision in Chotka Hembram vs State of West Beng al  Ors  Those decisions mentioned albeit are cases wherein t he first detention order ceased to be either by revocation or by expiry of the period of detention
What would be t he legal implications and ultimate effect of quashing an ord er of detention by the High Court in exercise of its jurisdi c tion under Article 226 of the Constitution of India th is Court in Ibrahim Bachu Bafan vs State of Gujarat  Ors   made the following rule   
When the High Court exercises jurisdiction und er Article 226 of the Constitution it does not make an order of revocation
By issuing a high prerogative writ like habeas 58 corpus or certiorari it quashes the order impugned before it and by declaring the order to be void and striking down t he same it nullifies the order
The ultimate effect of cance l lation of an order by revocation and quashing of the same in exercise of the high prerogative jurisdiction vested in t he High Court may be the same but the manner in which t he situation is obtained is patently different and while o ne process is covered by Section 111 of the Act the other is not known to the statute and is exercised by an authori ty beyond the purview of sub section 1 of Section 11 of t he Act
It is therefore our clear opinion that in a situati on where the order of detention has been quashed by the Hi gh Court sub section 2 of Section 11 is not applicable a nd the detaining authority is not entitled to make anoth er order under Section 3 of the Act on the same grounds
 It emerges from the above authoritative judicial pr o nouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subseque nt order
A fortiori when a detention order is quashed by t he Court issuing a high prerorgative writ like habeas corpus or certiorari the grounds of the said order should not be tak en into consideration either as a whole or in part even alon g with the fresh grounds of detention for drawing the requ i site subjective satisfaction to pass a fresh order becau se once the Court strikes down an earlier order by issuing ru le it nullifies the entire order
In the present case no doubt the order of detenti on contains fresh facts
In addition to that the detaini ng authority has referred to the earlier detention order a nd the judgment of the High Court quashing it presumably f or the purpose of showing that the detenu in spite of earli er detention order was continuing his bootlegging activitie section But what the detaining authority says clearly in paragraph 9 of his affidavit in reply is that he took into considerati on the previous grounds of detention also for his conclusi on that the detenu was engaged in bootlegging activities sin ce long 
In other words the detaining authority has taken in to consideration the earlier grounds of detention which groun ds had been nullified by the High Court in Special Crimin al Application No 46 of 1987 by issuing a prerogative writ of habeas corpus
Under Section 15 of the Act the expiry or revocation of an earlier detention order is not a bar for making a subs e quent detention 59 order under Section 3 against the same person
The provi so annexed to that Section states that in a case where no fre sh facts have arisen after expiry or revocation of an earli er order made against such person the maximum period for whi ch such person may be detained in pursuance of the subseque nt detention order shall in no case extend beyond the period of 12 months from the date of detention under the earli er order
Chinnappa Reddy J in Abdul Latif Abdul Wahab Shei kh vs BK Jha and Another   03 speaking for the bench of this Court while dealing wi th Section 15 of the Act observed It therefore becomes imperative to read down Section 15 of the Gujarat Prevention of Anti Social Activities Ac t 1985 which provides for the making of successive orders of detention so as to bring it in conformity with Article 22 4 of the Constitution
If there is to be a collision betwe en Article 224 of the Constitution and Section 15 of the Ac t Section 15 has to yield
But by reading down the provisio n the collision may be avoided and Section 15 may be su s tained Mr Poti has sought to explain the statement of t he detaining authority made in his counter saying that t he earlier proceeding was considered only to a limited purpo se of taking note of the detenu s continued involvement of bootlegging activities but the entire grounds of earli er detention as they were were not considered
We are unab le to accept this explanation because the detaining authorit y in the counter in clear terms had expressed that he consi d ered the earlier grounds of detention also
Incidently it was brought to our notice that a copy of the earlier groun ds of detention was also one of the documents furnished to t he detenu in the present case which confirms the fact that t he detaining authority has considered the earlier grounds of detention along with other documents for drawing his requ i site subjective satisfaction for passing this impugn ed order
In other words the earlier grounds of detenti on dated 21 1987 quashed by the High Court was one of t he material documents considered by the detaining authority in drawing his subjective satisfaction
Therefore we hold th at this order of detention is vitiated on the ground that t he detaining authority has taken into consideration the groun ds of earlier detention order alongwith other materials f or passing this impugned order
Hence the order is liable to be set aside
Accordingly we quash the detention order on this ground and direct that the detenu be set at liber ty forthwith if his detention is not required for any oth er case
RSS Petition allowed


Summary:
Arishtams and Asavas are Ayurvedic preparations whi ch were originally subject to a uniform levy applicable to a ll medicinal preparations belonging to the different systems of medicine under the Tamil Nadu General Sales Tax Act 195 9
Firstly by a notification dated 431974 and later by t he Tamil Nadu Act No 23 of 1974 the State Government singl ed out Arishtams and Asavas for a higher rate of levy of 3 0 while all other medicinal preparations were subjected to a levy of 7 with a view to curb the abuse of Arishtams a nd Asavas for their alcoholic content by drink addicts and to eliminate the mushroom growth of Ayurvedic pharmacies pr e paring sub standard Arishtams and Asavas for purposes oth er than medicinal use
The appellants filed writ petitio ns contending that Arishtams and Asavas manufactured by th em are essentially Ayurvedic medicines that the object of controlling consumption of liquor is being served by sever al other existing statutes that there are over 130 Allopath ic medicines containing alcohol which are potable and th at therefore the levy of tax at 30 on Arishtams and Asav as alone while other medicinal preparations are subjected to tax at 7 results in an invidious discrimination against t he manufacturers of those Ayurvedic preparations
The Hi gh Court dismissed the petitions
Allowing the appeals HELD The two preparations Arishtams and Asavas a re medicinal preparations and even though they contain a hi gh alcohol content so long as they continue to be identifi ed as medicinal preparations they must be treated for t he purposes of the Sales Tax Law in like manner as medicin al preparations generally including those containing a low er percentage of alcohol
The appellants are entitled to a refund of the excess paid as sales tax
41H 42A C 38 There is no reason why Arishtams and Asavas should be treated differently from the general class of Ayurved ic medicines
It is open to the Legislature or the Sta te Government if it is authorised in that behalf by the Legi s lature to select different rates of tax for differe nt commodities
But where the commodities belong to the sa me class or category there must be a rational basis for di s criminating between one commodity and another for the pu r pose of imposing tax
It is commonly known that consider a tions of economic policy constitute a basis for levyi ng different rates of sales tax
For instance the object m ay be to encourage a certain trade or industry in the conte xt of the State policy for economic growth and a lower ra te would be considered justified in the case of such a commod i ty
There may be several such considerations bearing direc t ly on the choice of the rate of sales tax and so long as there is good reason for making the distinction from oth er commodities no complaint can be made
What the actual ra te should be is not a matter for the courts to determine gene r ally but where a distinction is made between commoditi es failing in the same category a question arises at on ce before a Court whether there is justification for the di s crimination
In the present case we are not satisfied th at the reason behind the rate of 30 on the turnover of Aris h tams and Asavas constitutes good ground for taking those t wo preparations out from the general class of medicinal prep a rations to which a lower rate has been applied
40F H 41A C Adhyaksha Mathur Babu s Sakti Oushadhalaya Dacca  P Ltd and others vs Union of India  reli ed on