SCA/7547/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7547 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 ? ========================================= = SOMABHAI BALABHAI MALI THRO BROTHER-MANOJBHAI BALABHAI - Petitioner(s) Versus COMMISSIONER OF POLICE VADODARA CITY & 2 - Respondent(s) ========================================= Appearance : MR KAMLESH KACHHAVAH for Petitioner MR HUKUM SINGH, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 2 - 3. ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/09/2008 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of SCA/7547/2008 2/6 JUDGMENT India, the petitioner has challenged the order of detention dated 12th March, 2008 passed by the Commissioner of Police, Vadodara City in exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (The PASA Act), whereby it has been directed that the petitioner be detained so as to prevent him from carrying on activities prejudicial to the maintenance of public order and public health. The petitioner was detained on the same day and is under detention since then under the PASA Act. 2. Heard Mr. Kamlesh Kachhavah, learned advocate for the petitioner and Mr. Hukum Singh, learned Assistant Government Pleader appearing for the respondent – State authorities. Despite the fact that Rule was issued on 15th May, 2008, neither the detaining authority nor the State Government has bothered to file any affidavit-in-reply. 3. In the facts of the present case, it would be pertinent to reproduce the contents of the impugned order dated 12th March, 2008 verbatim in English. The impugned order of detention reads as under: 4. Following are the reasons for the purpose of detaining you under the provisions of section 9(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985. 1. Five offences have been registered against you in the year 2007-2008 with the J.P.Road Police Station, Vadodara City under the provisions of the Bombay Prohibition Act, whereby it appears that your anti social activities of selling liquor take place repeatedly. The SCA/7547/2008 3/6 JUDGMENT details of the offence are as under. 2. Thereafter, the order of detention refers to the five offences registered against the petitioner under the provisions of section 66B, 65AE and 81 of the Bombay Prohibition Act. 3. The copies of the first information report and the entire documentary evidence and the statements of witnesses recorded under section 161 in connection with the offence stated hereinabove are annexed herewith. 4. That in connection with the offence registered vide J.P. Road Police Station III – C.R. No.111/2008, you have been enlarged on bail. That taking steps to get the bail cancelled in connection with the aforesaid offence would consume more time, hence, no steps have been taken accordingly. 5. Steps have not been taken against you under the provisions of section 93 of the Bombay Prohibition Act, because by virtue of the same, it is not possible to prevent your anti social activities. 6. That the cases under the Prohibition Act referred to at Serial No.1 to 4 in the above table have been proved and vide serial No.5, a prohibition case has been registered against you. Hence, it is possible to take steps under Section 57 of the Bombay Police Act against you. However, taking such action is time consuming and it is necessary to immediately prevent your antisocial SCA/7547/2008 4/6 JUDGMENT activities of selling liquor, hence, it does not appear to be appropriate to take steps under Section 57 of the Bombay Police Act against you. 7. Thus, from the details of the offences shown in paragraph No.1, you illegally bring, manufacture, store and sell country. Liquor is injurious to the health of human beings, hence, consuming the same puts the health of citizens in danger and in future, is likely to cause large scale casualties. It is likely to affect the lives of human beings on a large scale. And in this manner, it is possible that the public health would be affected. Hence, if you are permitted to remain free, the possibility that you will bring, manufacture, store and sell country liquor, cannot be negatived. Hence, looking to the documentary evidence, I am wholeheartedly satisfied that it is necessary to detain you in exercise of powers under sub- section (2) of Section 3 of the PASA Act.” 5. This, in sum and substance, is the order passed by the detaining authority. What is evident need not be stated. It is apparent from a bare perusal of the impugned order that no subjective satisfaction whatsoever has been recorded by the detaining authority. All that the detaining authority has recorded is that offences have been registered against the petitioner under the provisions of the Bombay Prohibition Act, on the basis of which, the detaining authority has come to the conclusion that the activities of the petitioner are prejudicial to the maintenance of public health and public order. The reasoning adopted by the detaining authority is that per se the activities of selling liquor are injurious to the health of public at SCA/7547/2008 5/6 JUDGMENT large, as liquor is injurious to the health of the general public. There is no other material on record or no other satisfaction has been recorded by the detaining authority, except for the aforesaid. The subjective satisfaction recorded by the detaining authority flies in the face of various decisions of the Supreme Court as well as this Court, which hold that the activity of bootlegging per se, cannot be said to be an activity which is prejudicial to the maintenance of public health and public order so as to attract the provisions of the PASA Act. However, the detaining authority is either not aware of the settled legal position as laid down by the Apex Court or has deliberately chosen to turn a blind eye to the same, which in either case, is required to be deprecated. 6. The powers of preventive detention are draconian powers which have been vested in responsible high ranking authorities in order to ensure that such powers are exercised with due care and caution. However, it seems that the object behind the Act has been lost sight of by the detaining authority and orders are passed indiscriminately without any material whatsoever being on record to arrive at the conclusion that the activities of the detenue are prejudicial to the maintenance of public health and public order. In the aforesaid circumstances, the subjective satisfaction recorded by the detaining authority, if at all it can be said that the detaining authority has recorded any subjective satisfaction, stands vitiated as being based on no evidence. The impugned order of detention, therefore, cannot be sustained. 7. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order of detention dated SCA/7547/2008 6/6 JUDGMENT 12th March, 2008 passed by the Police Commissioner, Vadodara City is hereby quashed and set aside and the detenu – Somabhai Balabhai Mali is hereby ordered to be set at liberty forthwith, if not required to be detained for any other lawful purposes. Rule is made absolute accordingly. The cost of the petition shall be quantified at Rs.5000/-. Direct Service is permitted. (HARSHA DEVANI, J.) parmar*