SCA/11146/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 11146 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE P.B.MAJMUDAR ========================================================= 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 ? ========================================================= SURESHCHANDRA MANGILAL PURABIYA - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS KRISHNA U MISHRA for Petitioner(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 1, Mr. N.D. Gohil, Asst. RULE SERVED for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR Date : 05/07/2006 ORAL JUDGMENT By filing the present petition, the petitioner- detenu has challenged his detention order dated 25/02/06 by which he is detained under the SCA/11146/2006 2/8 JUDGMENT provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 [hereinafter referred to as PASA Act]. In the grounds of detention, there is a reference to a solitary case pending against the detenu under the Bombay Prohibition Act. The case is registered against the detenu under the provisions of the Bombay Prohibition Act for dealing in foreign liquor. The detaining authority has found that the activities of the detenu are such that it will prejudicially affect public health. It is also stated in the grounds of detention that the petitioner has been released on bail in the offences registered against him, and there are all possibilities that the petitioner will continue the bootlegging activities which will result into breach of public order. Learned advocate for the detenu submitted that except the solitary case, there is no other material to indicate that the activities of the detenu are prejudicial to public health. He further submitted that statement of not even a single witness has been recorded in the matter under section 9(2) of the PASA Act. It is also submitted by the learned advocate for the detenu that there is no credible material to show that by dealing in the so called liquor, the detenu has tried to harm public health. He further submitted that there is no report of any laboratory to the effect that consumption of the so called liquor is dangerous to public health so as to attract the SCA/11146/2006 3/8 JUDGMENT provisions of the Act. Learned advocate for the detenu relied on the judgment of a Division Bench of this Court, [Coram: M.R. Calla & R.R. Tripathi, JJ.] in the case of Ashok Balabhai Makwana v/s. State of Gujarat in LPA No. 223 of 2000 wherein this Court has held as under in paragraph 5 of the judgment: “If we examine the present case on the anvil of the test which has been applied by the Supreme Court in the case of K.S. Zala v. State of Gujarat (supra), i.e. with regard to the presence of credible material and as to how the detaining authority has made the mention against the appellant being an obstruction to the public health and public order, we find that in the instant case so far as the statements of the witnesses which were recorded with regard to unregistered cases, that ground has been rejected by the learned Single Judge himself. It is, of course, true that after narrating the particulars of the criminal cases, the detaining authority has mentioned that the activities of the appellant were an obstacle to the public health and public order, but this bald observation cannot be taken to be decisive so as to arrive at the satisfaction that the activities of the petitioner were prejudicial to the public order or public health and that tempo of public life was disturbed. No observation made in any part of the judgment can be read in isolation and bereft the context. The judgement is to be read as a whole and even the observations which have been made by the Supreme Court in para 6 of the judgement are to be considered in light SCA/11146/2006 4/8 JUDGMENT of the earlier observations made in para 5 where presence of credible material before the detaining authority has been insisted upon. Thus, litmus test to find out as to whether it is a case of breach of public order or breach of public health is concerned, credible material has to be there. In the case of K.S. Zala before the Supreme Court, the detaining authority had also relied upon the statements of the witnesses so as to show that violence resorted to by the petitioner in that case had disturbed the even tempo of public life and the material on record had shown that members of the public of those localities had to run away from there and to go inside their houses and to close their doors. No such fact situation has been mentioned in the present case and the ground with regard to the statements of the three witnesses has been rejected by the learned Single Judge himself and it has been held that there had been violation or infringement of the petitioner's right against such statements. In this view of the matter whatsoever said by the three witnesses with regard to unregistered cases and with regard to the three incidents referred to hereinabove, it cannot be considered to be the material germane for the purpose of consideration of the threat to the public health and public order. Thus, the only material which remains is the registered criminal cases and that by itself cannot be said to be a material for the purpose of holding that the appellant's activities had become a threat to the public order and public health. Necessary material in this regard is totally wanting in the body of the detention order itself. In large number of cases, the Supreme Court has considered that involvement in bootlegging activities SCA/11146/2006 5/8 JUDGMENT even if coupled with violence does not amount to threat to public order or public health. The mere mention of allegations unless they are supported by any material cannot be said to be material germane for the purpose of arriving at the satisfaction with regard to breach of public order or public health and we find that after giving particulars of criminal cases, the detaining authority by including certain allegations, not supported by any credible material has simply observed that the appellant's activities were an obstacle to the public health and public order. In this view of the mater keeping in view the observations made by the Supreme Court in the case of K.S. Zala v. State of Gujarat (supra) itself in paras 4 and 5, we do not find that it can be held to be a case of breach of public health and public order. Learned counsel for the appellant has also argued several other points before us, but we do not find it necessary to go into those grounds. It may be mentioned that it was not a case of breach of public order or public health and it was not argued before the learned Single Judge. Even if that be so, in such matters, the point which arises on the face of the facts of the case by the body of the order itself, which does not require further investigation of the facts, can certainly be allowed to be raised and we allow learned counsel for the appellant to raise this point and find that this point is not without substance. The impugned order passed by the learned single Judge upholding the detention order therefore, cannot be said to be in consonance with the settled position of law. The detention order deserves to be quashed and set aside on this ground alone. We, therefore, do not go into other grounds which were raised on behalf of SCA/11146/2006 6/8 JUDGMENT the appellants.” Learned advocate for the detenu has also relied upon the decision of the Supreme Court in District Collector, Ananthapur and another vs. V. Laxmanna reported in 2005 AIR SCW 1822 : (2005) 3 SCC 663. In the aforesaid case, the Supreme Court has observed as under in paragraphs 7 and 8 : “7. We do not think this argument of the learned counsel can be accepted. If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to him that the arrack dealt with by the detenu is an arrack which is dangerous to public health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation. 8. Therefore, while holding that dealing with arrack which is dangerous to public health would become an act prejudicial to the maintenance of public order attracting the provisions of the Act. It must be held that it is obligatory for the detaining authority to provide the material on which it has based its conclusion on this point. Therefore, we are in agreement with the High Court that if the detaining authority is of the opinion that it is necessary to detain a person under the Act to prevent him from indulging in sale of goods dangerous for human SCA/11146/2006 7/8 JUDGMENT consumption the same should be based on some material and the copies of such material should be given to the detenu.” Learned Assistant Government Pleader is not in a position to substantiate his say that the activities of the detenu are prejudicial to public health or that the detenu has violated public order. Having gone through the records, there is nothing to show that the activities of the detenu is likely to prejudicially affect public health. There is no credible material from which it can be said that the activities of the detenu is prejudicial to public health. At the most it can be said that the activities of the detenu is in breach of law and order, and not public order. The petition is required to be allowed as from the available records it cannot be said that the activities of the detenu is against public health. In the result, the petition is allowed. Order of detention passed against the detenu dated 25.02.06 is quashed and set aside. The detenu is ordered to be released forthwith unless he is required in connection with any other offence. Learned advocate for the detenu makes a voluntary statement that the detenu will not leave the limits of Valsad Town upto 31st October 2006 except for attending criminal case which is registered at Chowk Bazar Police Station, Surat. This voluntary statement is recorded. This voluntary statement is recorded. It is for the learned SCA/11146/2006 8/8 JUDGMENT Assistant Government Pleader to inform the concerned authorities about the voluntary statement and it is for the concerned authorities to monitor the same. Rule is made absolute, with no order as to costs. [P. B. MAJMUDAR, J.] mathew