Gujarat High Court Case Information System Print SCA/5144/2008 4/ 4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5144 of 2008 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) Appearance : MR [ENTITY] for Petitioner(s) : 1, MR [ENTITY], AGP for Respondents CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 13/08/2008 ORAL JUDGMENT
1. Heard the learned advocate for the petitioner and the learned AGP for the respondents.
2. The petitioner-detenue has preferred this petition under [SECTION] of the [ACT], for appropriate writ, order or direction for quashing and setting aside the impugned order dated 2.2.2008 passed by the respondent No.1-the Commissioner of Police, Ahmedabad City, in exercise of power under [SECTION] of the [ACT] (?SPASA Act for short) whereby the petitioner has been detained as a ?Sbootlegger . In pursuance of the said impugned order, the petitioner is detained in District Jail, Bhavnagar.
3. From the grounds of detention, it appears that there are four offences being [CASE NUMBER] have been registered against the detenu. Out of the four offences, the first offence is registered with Bapunagar Police Station and the rest of the offences are registered with Naroda Police Station. The offences are registered under the provisions of [SECTION], [SECTION], [SECTION], [SECTION], and [SECTION], under the [ACT], wherein a quantity of total 58 bottles of Foreign Liquor were found from the possession of the detenue. On the basis of registration of these cases, 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 her from carrying out further illegal activities, i.e. selling of liquor. The detaining authority has placed reliance on the above registered offences 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 ?Spublic 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 ?Slaw and order and not ?Spublic 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 country made liquor which is harmful to the health of the public. In the case of [PRECEDENT], having considered the decision of the Hon'ble Apex Court in the case of [PRECEDENT], 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 ?Slaw and order and not ?Spublic 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 ?Spublic order and it is very clear that the present would not fall within the category of threat to ?Spublic 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. In the result, this Special Civil Application is allowed. The impugned order of detention dated 2.2.2008 passed by the detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.
([ENTITY],J.) [ENTITY].