SCA/608120/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6081 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 ? ========================================= = HEMANT ALIAS BHIKHO KANTIBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= = Appearance : MS SUBHADRA G PATEL for Petitioner(s) : 1, MR HUKAM SINGH, AGP for Respondent(s) : 1, 3, RULE SERVED BY DS for Respondent(s) : 1 - 2. ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/09/2008 ORAL JUDGMENT 1. Heard Ms. Banna Dutta, learned advocate for Ms. SCA/608120/2008 2/9 JUDGMENT Subhadra Patel, learned advocate for the petitioner and Mr. Hukam Singh, learned Assistant Government Pleader for the respondent - State of Gujarat. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order of detention dated 12th March, 2008 passed by the Police Commissioner, Surat City, in exercise of powers under sub-section (2) of Section 3 of The Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the ‘PASA Act’). The petitioner was detained on 12th March, 2008 and since then he is under detention. 3. The detaining authority in the impugned order has informed the petitioner under section 9(1) of the PASA Act that the order of detention has been passed against him for the following reasons: Despite the fact that country liquor is injurious to public health, the petitioner, by illegally keeping stock of country made liquor in his possession and selling the same in the Surat city area, and supplying the same to his accomplices, is carrying on antisocial activities, in respect of which the offence detailed thereunder has been registered against him. The detaining authority has thereafter referred to the solitary offence registered vide Umra Police Station III C.R. No.166/08 on 1.3.2008 for the offence punishable under sections 66(1)(b), 65E and 81 of the Bombay Prohibition Act. Thereafter the detaining authority has referred to the first information report and other documents supplied along with the order of detention. SCA/608120/2008 3/9 JUDGMENT 4. In the next paragraph the detaining authority has observed that in connection with the aforesaid offence, investigation is going on and there is sufficient evidence against him. That in view of the aforesaid antisocial activities carried on by the petitioner he is a “bootlegger” as defined under section 2(b) of the PASA Act and is known as such and that he is certain of the said fact and is fully satisfied in that regard. In the next three paragraphs the detaining authority has recorded that taking steps against the petitioner under the provisions of section 93 of the Prohibition Act, would be time consuming and is not sufficient to prevent the petitioner from carrying on his antisocial activities. That for taking steps for externment under section 57(c) of the Bombay Police Act at least two offences have to be proved against him in a court of law, whereas the position of offence registered against him is as stated above. In the circumstances, it is not possible to resort to the said provision. That the petitioner has been enlarged on bail in connection with the aforesaid offence and there is all possibility that he would continue with his bootlegging activities. 5. In the concluding paragraph, the detaining authority has stated that upon carefully studying all the evidence and facts referred to in the preceding part of the order, he is fully satisfied that the petitioner is a ‘bootlegger’. And despite country made liquor being injurious to the health of the public, the petitioner by keeping stock of country made liquor in his possession and selling the same in the Surat city area and supplying the same to his accomplices, is carrying on illegal antisocial activities and is involved in an offence punishable SCA/608120/2008 4/9 JUDGMENT under the Prohibition Act. Thus, the petitioner’s aforesaid unlawful, antisocial activities are obstacles in the maintenance of public health and public order. Hence, it is necessary to immediately prevent the petitioner from indulging in such activities. That while he is on bail there is every likelihood that he will continue with his bootlegging activities due to which the public health will be in danger and economic as well life-taking physical ruin may take place, due to which there is all possibility that public order would be adversely affected. Thus with a view to immediately prevent the petitioner from carrying on activities which are prejudicial to the maintenance of public health and public order and as there was no other option, as a last resort in exercise of powers under section 3(1) of the PASA Act, he was ordering that the petitioner be detained as a ‘bootlegger’. This, in sum and substance, are the contents of the detention order. 6. In response to the issuance of rule in the matter, the detaining authority has filed an affidavit-in-reply dated 22nd May, 2008 wherein he has stated that the documents relating to the offences registered against the petitioner clearly show that the petitioner has indulged in anti-social activities which are prejudicial to the maintenance of public order and that, therefore, there is sufficient cogent material on the record of the case so as to arrive at the subjective satisfaction that the detenu is a bootlegger and is indulging in activities which are prejudicial to the maintenance of public order. However, except for the aforesaid bare assertion, there is no explanation worth the name coming forth to indicate as to how the alleged activities of the petitioner are prejudicial to the maintenance of public health and public order. All that is stated is that the SCA/608120/2008 5/9 JUDGMENT petitioner is carrying on the antisocial activity of maintaining a stock of country made liquor and is selling and supplying the same to his accomplices. From the tenor of the order of detention, it appears that according to the detaining authority the activity of bootlegging per se amounts to an activity which is prejudicial to the maintenance of public health and public order. There is no material on record to show that the activities of the petitioner have in any manner prejudicially affected the maintenance of public health and public order or upset the even tempo of life of the community. 7. 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, 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 SCA/608120/2008 6/9 JUDGMENT 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 upheld.” 8. A Division Bench of this Court vide judgment 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 SCA/608120/2008 7/9 JUDGMENT 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 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.” 9. In the facts of the present case, the only material before the detaining authority is the solitary criminal case registered against the petitioner, which by itself cannot be said SCA/608120/2008 8/9 JUDGMENT to be material for the purpose of holding that the activities of the petitioner are prejudicial to the maintenance of public health and public order. The detention order is totally lacking in necessary material in this regard. As held by the Division Bench of this court in the decision cited hereinabove, 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. The aforesaid decision of the Supreme Court is rendered way back in the year 1989 and has also been followed in subsequent decisions of the Supreme Court as well as this Court. The detaining authority, who regularly deals with PASA cases obviously cannot be oblivious to the position of law laid down by the aforesaid decisions. However, it appears that the detaining authority is either not aware of the said decisions or is simply turning a blind eye to the said decisions, and persists in passing orders which are contrary to the law laid down by the Supreme Court, which in either case, is required to be strongly deprecated. 11. Considering the material on record as well as the contents of the impugned order of detention, it is apparent that the subjective satisfaction of the detaining authority is based on no evidence and as such, is vitiated. In the circumstances, the impugned order of detention cannot be sustained. 12. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order of detention dated SCA/608120/2008 9/9 JUDGMENT 12th March, 2008 passed by the Police Commissioner, Surat City is hereby quashed and set aside and the detenu – Hemantbhai @ Bhikho Maliyo Kantibhai Patel is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute. Direct Service is permitted. ( Harsha Devani, J. ) hki