Gujarat High Court Case Information System Print SCA/171520/2009 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1715 of 2009 [ENTITY] - Petitioner(s) Versus [ENTITY] & 2 - Respondent(s) Appearance : MS [ENTITY] for Petitioner(s) : 1, Mr [ENTITY], Asstt.GOVERNMENT PLEADER for Respondent(s) : CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 20/03/2009 ORAL ORDER
1. Heard learned counsel appearing for the parties.
This petition is directed against the order of detention dated 4.11.2008 passed by respondent No. 1 in exercise of powers conferred under [SECTION] of the [ACT] (in short the Act) by detaining the detenu as a bootlegger as defined under [SECTION] of the Act.
2. Learned advocate for the detenu restricted his arguments to the extent of order of detention and submits that registration of two FIRs itself cannot lead to disturbance of even tempo of public life and therefore the public order. The order of detention is assailed by the detenu on various grounds mentioned in the memo of the petition. However, learned counsel for the detenu has focused his arguments mainly on the ground that except two FIRs registered under the [ACT], there was no other material before the detaining authority whereby it could be inferred reasonably that the detenu is a 'bootlegger' within the meaning of [SECTION] of the Act and required to be detained as the detenu's activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned counsel for the detenu has placed reliance on relevant observations made by the Apex Court in the case of [PRECEDENT] and the Judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram: [ENTITY] & [ENTITY], JJ.), in [CASE NUMBER] in [CASE NUMBER] ([PRECEDENT] which would squarely help the detenu. Learned advocate for the detenu further submits that no affidavit-in-reply is filed by the State Government.
3. In view of the above, subjective satisfaction of the detaining authority that anti-social activities carried out by the detenu are detrimental to public order stands vitiated and order of detention based on such satisfaction deserves to be quashed and set aside.
4. Learned Assistant Government Pleader submitted that registration of two complaints would go to show that the detenu had, in fact, indulged into such activities, which can be said to be disturbing the public health and public order. Learned Assistant Government Pleader further submitted that there was sufficient material before the detaining authority to pass the order of detention and no interference is called for by this Court in exercise of its power under [SECTION] of the [ACT].
5. Having heard the rival submissions of the parties and perused the record of the case, I am of the view that two complaints registered under the [ACT] alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order. The registration of FIRs under [ACT] ipso facto does not lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. The activities of the detenu must, in the backdrop of the facts, reflect that such activities disturbed or likelihood of disturbing the tempo of normal life of society or general peace and tranquility or create a sense of alarm and insecurity in the locality. The impugned order suffers from vice of non-application of mind inasmuch as the cases in which the detaining authority has placed reliance do not indicate that the liquor seized from the detenu is detrimental to the health of public at large.
6. On careful perusal of the material available on record and the ratio laid down by the Apex Court in the case of [PRECEDENT] (supra) and the Judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram:
[ENTITY] & [ENTITY], JJ.), in [CASE NUMBER] in [CASE NUMBER] ([PRECEDENT], I am of the view that the activities of the detenu cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside.
7. In the result, the petition is allowed. The order of detention dated 4.11.2008 passed by the respondent No. 1 is quashed and set aside. The detenu, is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.
[[ENTITY], J.] msp