SCA/9665/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9665 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = VASHRAMBHAI NATHABHAI DANGAR - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= Appearance : MR HR PRAJAPATI for Petitioner(s) : 1, MR SATYAM CHHAYA, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1, 3, RULE SERVED BY DS for Respondent(s) : 1 - 2. ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 19/09/2008 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of SCA/9665/2008 2/9 JUDGMENT India, the petitioner has challenged the order of detention dated 9th March, 2008 passed by the District Magistrate, Bhavnagar in exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (the PASA Act), ordering that the petitioner to be detained to prevent him from acting in a manner prejudicial to the maintenance of public order. The order was executed on the same day. The petitioner is, thus, detained under the Act since 9th March, 2008. The petitioner has made a representation dated 17th March, 2008 to the District Magistrate, Bhavnagar against the order of detention. 2. Pursuant to the filing of the petition, Rule was issued on the petition on 30th July, 2008. However, neither the detaining authority nor the State Government have filed any counter to the petition. 3. The impugned order of detention is challenged on various grounds. However, the main ground for challenging the said order is that there is no material on record on the basis of which, the detaining authority could arrive at the subjective satisfaction that the petitioner was acting in a manner prejudicial to the maintenance of public order. 4. The grounds of detention which are annexed to the detention order show that on the date of passing of the detention order, a solitary criminal case registered on 6th February, 2008 was pending against the petitioner under Sections 66B, 65(AE), 81, 116(B) and 98(d) of the Bombay Prohibition Act, 1949. SCA/9665/2008 3/9 JUDGMENT 5. After referring to the aforesaid criminal case, the detaining authority has stated that he has made a detailed indepth study of the offences. That the police have apprehended a large stock of Indian Made Foreign Liquor from the petitioner and his accomplices. That in view of the antisocial activities of the petitioner of indulging in the unlawful business of liquor, the same is likely to have an adverse effect on the community. Thus, the petitioner by carrying on illegal activities is prejudicially affecting the maintenance of public health and public order. Thus, the petitioner is carrying on the unlawful business of liquor in a manner whereby the same is an obstacle to the maintenance of public health and public order. That the petitioner does not pursue any respectable mode of livelihood. The petitioner brings large quantities of English Liquor and sells the same. Deals in liquor and hoards loquor. That his activities have increased very much. Police have carried out raid and have registered a case, however, upon being enlarged in connection with the offence, the petitioner is likely to again carry on the business of Indian Made Foreign Liquor. That the illegal activity of the petitioner of carrying on the unlawful business of English liquor is prejudicial to the maintenance of public health and public order. The detaining authority has, accordingly, arrived at the subjective satisfaction that, with a view to prevent the petitioner form in any manner carrying out the activities which are prejudicial to the public health and public order, it was necessary to detain the petitioner. The detaining authority has thereafter recorded reasons SCA/9665/2008 4/9 JUDGMENT as to why it was not feasible to resort to provisions of other statutes to prevent the petitioner from carrying on such activities. The detaining authority has further recorded that the activities of the petitioner of unlawfully selling liquor had a very wide spread effect and such activities of the petitioner and his accomplices could not be prevented under other provisions of law. That with a view to prevent the petitioner from carrying out unlawful activities which were prejudicial to the public health and public order, the detaining authority was satisfied that the petitioner was to be detained as a bootlegger under Section 2(b) of the Act in exercise of powers under Section 3(2) of the PASA Act. On the basis of the aforesaid observations, the order of detention has been passed. 6. Heard the learned advocates for the parties. 7. A perusal of the entire grounds of detention clearly shows that the only ground for arriving at the subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public health and public order, is that the petitioner is a bootlegger. Though the detaining authority has recorded that the activities of the petitioner are wide spread and that the unlawful activities of the petitioner had increased to a great extent, there is no material whatsoever on record to substantiate such a finding. The documents supplied with the order of detention are only in the nature of statements of the police officers who had participated in the raid carried out, on the basis of which the solitary offence had been SCA/9665/2008 5/9 JUDGMENT registered against the petitioner under the provisions of the Bombay Prohibition Act. There is no other evidence worth the name, on record to substantiate the aforesaid findings recorded by the detaining authority. Merely on the basis of the fact that a solitary offence under the Bombay Prohibition Act has been registered against the petitioner, the detaining authority has arrived at the subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public health and public order. Insofar as the activities of the petitioner being prejudicial to the public health, there is nothing on record to show as to how the activities of the petitioner are prejudicial to public health, or that the activities of the petitioner are causing or likely to cause wide spread danger to life or public health. The only reason given is that the petitioner is carrying on the unlawful business of selling Indian Made Foreign Liquor. Thus, according to the detaining authority, the activity of selling Indian Made Foreign Liquor, per se, amounts to an activity that is prejudicial to the maintenance of public order and public health. 8. It is settled legal position as held by the Supreme Court in the case of Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and another, 1989 Supp (1) SCC 322 that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If an act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, SCA/9665/2008 6/9 JUDGMENT such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of ‘public order’. On the facts of the said case the petitioner therein was detained on the ground that he was a bootlegger and that some incidents of beating by the petitioner had taken place, as alleged by witnesses. According to the Supreme Court the said incidents did not have any bearing on the maintenance of public order. It was further held that: “The petitioner may be punished for the alleged offences committed by him but, surely, such acts constituting the offences cannot be said to have affected the even tempo of life of the community. It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of section 3 of the Act, his activities as bootlegger affect or are likely to affect adversely the maintenance of public order. We have carefully considered the offences alleged against the petitioner in the order of detention and also the allegations made by the witnesses and, in our opinion, these offences or the allegations cannot be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of maintenance of public order. The order of detention cannot, therefore, be SCA/9665/2008 7/9 JUDGMENT upheld.” 9. A Division Bench of this Court vide judgement and order dated 22nd August, 2000 rendered in the case of Ashokbhai Balabhai Makwana v. State of Gujarat, Letters Patent Appeal No.223 of 2000, after considering the decision of the Supreme Court in the case of Kanuji S. Zala v. State of Gujarat, 1999 (2) GLH 415 held that a bald observation that the activities of the petitioner were an obstacle to public health and public order 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. The Court further held that the litmus test to find out whether it is a case of breach of public order or breach of public health is that credible material has to be there. In the facts of the said case, apart from the allegation that the petitioner was a bootlegger based on some registered cases, there were some unregistered cases and statements of anonymous witnesses against the petitioner therein. The Court held thus: “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 SCA/9665/2008 8/9 JUDGMENT cases, the Supreme Court has considered that involvement in bootlegging activities 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.” 10.On the facts of the present case, a perusal of the detention order shows that after giving particulars of the criminal cases registered against the petitioner, the detaining authority has simply observed that the petitioner's activities were in the nature of hindrance to the public health and public order, without there being any credible material in support thereof. Thus, there is no material on record except the solitary criminal case registered against the petitioner under the provisions of the Bombay Prohibition Act. 11.As held by the Supreme Court as well as this Court in the decisions cited hereinabove, mere registration of a criminal case by itself cannot be said to be a material for holding that the petitioner's activities have become a threat to the public order or public health. The subjective satisfaction arrived at by the detaining authority for the purpose of passing the order of detention being based upon no evidence, the order of detention cannot be sustained. SCA/9665/2008 9/9 JUDGMENT 12.For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned order of detention dated 9th March, 2008 passed by the District Magistrate, Bhavnagar in exercise of powers under sub-Section (2) of Section 3 of the PASA Act against the petitioner – Shri Vashrambhai Nathabhai Dangar, is hereby quashed and set aside. The petitioner shall be set at liberty forthwith if not required in any other case. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. [HARSHA DEVANI, J.] parmar*