Gujarat High Court Case Information System Print SCA/12991/2009 1/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12991 of 2009 For Approval and Signature: HONOURABLE MR.JUSTICE [ENTITY] 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 ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [PRECEDENT] Appearance : MS [ENTITY] for Petitioner. MR [ENTITY], ASST. GOVERNMENT PLEADER for Respondents CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 27/04/2010 ORAL JUDGMENT
By filing this writ petition under [SECTION] of the [ACT], the detenu has challenged the order of detention No. [CASE NUMBER] dated 12.10.2009 passed by the Commissioner of Police, Rajkot City, respondent No.2, in exercise of powers under [SECTION] of the [ACT] [hereinafter referred to as the [ACT]] detaining the detenu as a bootlegger, as being illegal, invalid, arbitrary, void ab-initio and suffers from total non-application of mind and also in violation of the provisions of the [ACT].
Learned advocate for the detenu, Ms. [ENTITY] submitted that the grounds of detention do not indicate any satisfaction recorded by the detaining authority that the activities of the detenu are detrimental to public order , and, therefore, the detention order is bad and illegal. She submitted that the detaining authority has placed reliance on two cases under the [ACT] but the same do not indicate anything to support disturbance to public order . She submitted that both the offences were registered on 08.09.2009, and in the second offence the detenu was arrested on 10.09.2009, the detenu was released on bail 11.09.2009 but the detention order is passed on 12.10.2009. Learned advocate therefore submitted that there is a delay in passing the order of detention and on this ground also, the detention order requires to be quashed and set aside.
Mr. [ENTITY], learned AGP submitted that the detention order is just and proper and detaining authority has passed the order after considering all relevant aspects of the matter, and the same needs no interference.
Heard learned counsel appearing for both the sides. I have also perused the records available in the compilation.
It appears that on the basis of two cases, viz. [CASE NUMBER] dated 08.09.2009 registered at 'A' Division Police Station, Rajkot for 48 bottles of foreign liquor, and [CASE NUMBER] dated 08.09.2009 registered at Malavianagar Police Station, Rajkot for 80 bottles of foreign liquor, registered against the detenu, the detaining authority held that the said activities of selling liquor of the present detenu were harmful to the health of the public, and to restrain from carrying further illegal activities, the detenu has been detained. It appears from the order that the activities of the detenu cannot be said to be disturbing the public order . It also appears from the order passed by the detaining authority that grounds which are mentioned in the order are in reference to the situation of law and order and not public order .
It is the contention of learned advocate for the detenu that the detaining authority has placed reliance on four cases registered against the detenu and the second offence was registered on 08.09.2009, the detenu was arrested on 10.09.2009 and released on bail on 11.09.2009 whereas the detention order is passed on 12.10.2009. Hence there is delay of almost 31 days in passing the order of detention. The delay caused in passing and execution of the order of detention is not satisfactorily explained. In the case of [PRECEDENT], in paragraph 21, this Court held as under:
There appears to be some substance in the contention of the petitioner that these two unregistered cases have been referred only with a view to cover up the gap or delay makes a ground of detention not proximate, vitiating the order of detention itself. If I am to buttress my findings, I would say the reference may be made to the decision of the Supreme Court in [PRECEDENT] and [PRECEDENT] .
Hence, I am of the view that on the ground of delay caused in passing the order of detention itself, this petition requires to be allowed.
That apart, except the statements of some anonymous witnesses, there is no material on record which shows that the detenu is carrying on activities of selling country made liquor which is harmful to the health of the public. In the case of [PRECEDENT] the Apex Court has distinguished between public order and law and order and held that the distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society which would disturb the even tempo of life of the community and if the effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only.
Applying the ratio of the above decision, it is clear that before passing an order of detention of a detenu, 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 case would not fall within the category of threat to public order . Even the quantity involved is small. 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, it cannot be sustained and, therefore, it deserves to be quashed and set aside.
For the foregoing reasons, the petition is allowed. The impugned order of detention dated 12.10.2009 passed by the Police Commissioner, Rajkot City, respondent No.2 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.
mathew [ [ENTITY], J.]