SCA/22507/2005 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22507 of 2005 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 ? ========================================================= SAGAR BACHUBHAI DEVIPUJAK - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS SUBHADRA G PATEL for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. Mr. N.D. Gohil, ASST. GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR Date : 12/06/2006 ORAL JUDGMENT 1. By filing this petition, the petitioner detenu has challenged his detention order dated 23.10.2005 by which the petitioner is detained under preventive SCA/22507/2005 2/4 JUDGMENT detention by resorting to the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 [hereinafter referred to as PASA Act]. The detaining authority found that the petitioner is a bootlegger and therefore his activities are prejudicial to public health. 2. In the grounds of detention, there is a reference of eight pending criminal cases registered against the petitioner. It is required to be noted that all these cases are registered under the provisions of the Bombay Prohibition Act, and it is alleged that the petitioner is dealing in country liquor. The detaining authority, after having been satisfied subjectively, has passed the aforesaid detention order. 3. Learned advocate for the petitioner submitted that except the pending criminal cases, the detaining authority has not relied upon any other material, nor statement of any witness is recorded to show that the activities of the petitioner is prejudicial to public health. It is submitted by the learned advocate for the petitioner that registering of criminal cases against the petitioner can at the most be said to be an act of violation of law, and not public order. It is submitted that there is no credible material on record to show that the activities of the petitioner is prejudicial to public health. 4. Learned advocate for the petitioner has relied SCA/22507/2005 3/4 JUDGMENT upon judgment and order dated 31.01.2006 passed by a co-ordinate Bench of this Court [Coram: K.M. Mehta, J.] in Special Civil Application No. 22579 of 2005 [Niruben Ashokbhai Parmar vs. The State of Gujarat & Others]. In paragraph 7 of the said judgment, learned Single Jude has observed as under: “7. Though there are seventeen offences which has been alleged against the petitioner-detenu wherein it is alleged that, petitioner-detenu is 'bootlegger' within the meaning of PASA Act, the learned counsel for the petitioner-detenu has submitted that the authority has passed the order of detention on the basis of the fact that petitioner-detenu is manufacturing liquor and he has storing raw material for the manufacturing of country liquor and he is also transporting and selling the liquor in this behalf. The learned counsel has also submitted that storing of arrack (raw material of country liquor) would would not become activities prejudicial to the maintenance of public order because the same can be dealt with under the provisions of ordinary prohibition Act and if raw material, arrack of country liquor sold by the detenu, his activities does not affect the public health. Therefore, that arrack i.e. raw material of country liquor is dealt with by the detenu and country liquor which is dangerous to the public health, such materials exceeds either in the form of report of chemical examiner or FSL. The copy of the same would require also to put to make effective representation.” 5. In paragraph 14 of the said judgment, the learned Single Judge has further observed as under: “14. Having heard the rival submissions of the parties and perused the records of the case, I am of the view that only registration of criminal case alone cannot SCA/22507/2005 4/4 JUDGMENT be said to be sufficient enough to arrive at the subjective satisfaction to the effect that the activities of the detenu are prejudicial to the public order. The power to detain a person under the PASA Act is not based on simple facts about registration of crime. There has to be nexus and link for such activities which disturb the public order. The activities of the detenu must in the backdrop of the facts, reflect that such activities disturbed the even tempo or normal life of the community in the locality or disturbed general peace and tranquility or create a sense of alarm and insecurity in the locality. “ 6. Considering the aforesaid aspect as well as considering the fact that there is no material finding place on the record worth the name even in the form of statement of witnesses to show that the activities of the petitioner are such which will be prejudicial to public health, at the most it can be said that the activities of the petitioner is in breach of law and order, and not public order. 7. For the reasons recorded above, and more particularly in view of the judgment of the learned Single Judge referred to hereinabove, this petition is allowed. Order of detention dated 23.10.2005 passed against the petitioner is quashed and set aside. The petitioner is ordered to be released forthwith unless he is required in connection with any other offence. Rule is made absolute, with no order as to costs. [P. B. MAJMUDAR, J.] mathew