SCA/5966/2008 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5966 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 ? ========================================= = DEVISING BHERUSING RAJPUT (RATHOD) - Petitioner(s) Versus COMMISSIONER OF POLICE OF CITY OF AHMEDABAD & 2 - Respondent(s) ========================================= = Appearance : MS BANNA S DUTTA for Petitioner MR HUKUM SINGH, ASSTT. GOVERNMENT PLEADER for Respondents ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 19/09/2008 ORAL JUDGMENT 1. This petition under Article 226 of the Constitution of India is directed against the order of preventive detention dated 12th March, 2008 made by the Police Commissioner, Ahmedabad City in exercise of powers SCA/5966/2008 2/13 JUDGMENT under sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (the PASA Act), ordering that the petitioner, a youth aged 22 years, be detained to prevent him from acting in a manner prejudicial to the maintenance of public order. The order was executed on 14th March, 2008. The petitioner is thus detained under the Act since 14th March, 2008. 2. Rule was issued on the petition on 09th April, 2008. The detaining authority has filed an affidavit in-reply dated 18th September, 2008. 3. Ms.Banna Dutta, learned advocate for the petitioner has submitted that the facts of the present case are quite startling. The offence was registered on 11th March, 2008 pursuant to a search carried out by the police authorities. On 12th March, 2008, an application for remand came to be made which was rejected by the learned Metropolitan Magistrate, Court No.20, Ahmedabad by an order of the same date. The petitioner had made an application for bail which came to be granted on 12th March, 2008. That the detaining authority has passed the present order of detention on 12th March, 2008 after considering the order of remand as well as the order of bail. It is submitted that it is difficult to comprehend as to how the orders passed on the same day came to be taken into consideration by the detaining authority for arriving at the subjective satisfaction that the activities of the petitioner were prejudicial to the maintenance of public order and public health. It is pointed out that the petitioner has been SCA/5966/2008 3/13 JUDGMENT detained pursuant to a solitary offence registered a day prior to the date of order of detention. It is contended that, on a perusal of the entire order of detention, there is nothing to show as to how the activities of the petitioner are prejudicial to the maintenance of public order and public health. 4. The grounds which are annexed to the detention order show that on the date of passing of the detention order, a solitary criminal case registered on the previous day i.e. on 11th March, 2008, was pending against the petitioner under Sections 66B, 65E and 81 of the Bombay Prohibition Act, 1949. After narrating the nature of the documents supplied to the petitioner along with the order of detention, the detaining authority has observed that on the basis of the said documentary evidence, it is apparent that the petitioner possesses a criminal mind. That despite country liquor being injurious to the health of the public at large the petitioner was carrying on the aforesaid anti-social activities and as such was a bootlegger within the meaning of Section 2(b) of the PASA Act, that is, he was a person who was unlawfully selling country liquor, and is known as such in his residential area. The detaining authority has further observed that it is not possible to immediately prevent the petitioner from carrying on with his above referred activities by taking steps under Section 93 of the Bombay Prohibition Act; hence, he does not deem it fit to take action thereunder. The detaining authority has further observed that he is fully satisfied that the petitioner is a SCA/5966/2008 4/13 JUDGMENT bootlegger. That despite country liquor being injurious to public health he was unlawfully selling country liquor. Thus, his above noted anti-social activities are in the nature of hindrances to the maintenance of public order and public health and are required to be prevented immediately. That the petitioner has been enlarged on bail in connection with the said offence and there are all possibilities that the petitioner will continue with his anti- social activities. That there are all possibilities that the petitioner will put public health and public order in danger and cause economic ruin among the people. As such, it is necessary to immediately prevent him from carrying on activities which are obstacles to the maintenance of public order and public health. That there being no remedy, as a last resort he is ordering the detention of the petitioner under the aforesaid Act. This, in sum and substance, is the satisfaction recorded by the detaining authority. 5. A perusal of the entire grounds of detention clearly shows that the only ground for arriving at the satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order is that the petitioner is a bootlegger. There is nothing to show as to how the activities of the petitioner are prejudicial to the maintenance of public order nor is there any material on record to support such a finding. 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 SCA/5966/2008 5/13 JUDGMENT satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order and public health. Insofar as the activities being prejudicial to 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 widespread danger to life or public health. The only reason given is that despite the fact that country liquor is injurious to public health, the petitioner was carrying on the activity of selling country liquor. Thus, according to the detaining authority the activity of selling country liquor, per se, amounts to an activity that is prejudicial to the maintenance of public order and public health. 6. 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 SCA/5966/2008 6/13 JUDGMENT 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 upheld.” 7. 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 SCA/5966/2008 7/13 JUDGMENT 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 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.” SCA/5966/2008 8/13 JUDGMENT 8. Sub-section (1) of Section 3 of the PASA Act empowers the State Government to make an order directing that a person be detained, if it is so satisfied that it is necessary to do so with a view to prevent such person from acting in any manner prejudicial to the maintenance of public order. 9. Sub-section (2) of section 3 provides that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, that the District Magistrate, or the Commissioner of Police, may also, if satisfied as provided in Sub-section (1), exercise the powers conferred under the said Sub-section. 10.On a plain reading of the aforesaid provision it is apparent that the Legislature in its wisdom has permitted the State Government to direct the District Magistrate, or the Commissioner of Police, to exercise the powers conferred under sub-section (1) of Section 3 of the PASA Act. Both the District Magistrate as well as the Commissioner of Police are high ranking officers. The reason behind conferring the powers under sub-section (1) of section 3 on such officers, is not far to seek. The powers conferred under the PASA Act are drastic powers, whereby the liberty of a person can be taken away SCA/5966/2008 9/13 JUDGMENT without resorting to the ordinary provisions of law. These powers are to be exercised with extreme care and caution and only in rarest of cases, where the detaining authority upon consideration of the material on record arrives at the subjective satisfaction that the activities of such person are prejudicial to the maintenance of public order. The detaining authority, which has been vested with such drastic powers, also has a responsibility to see that the powers are exercised with responsibility and with utmost care and caution. Orders of detention cannot be passed in a routine and per functionary manner. The detaining authority is expected to properly apply its mind to the material before it and after carefully studying the said material should come to the conclusion that the activities of the person concerned are prejudicial to the maintenance of public order. Such satisfaction should be arrived at on the basis of the material placed before the detaining authority and should not be based on assumptions and presumptions. 11.On the facts of the present case, if the reasoning adopted by the detaining authority for holding that the activities of the petitioner are prejudicial to the maintenance of public order and public order is taken to its logical end, it would mean that in other States of the country where there is no prohibition policy, persons who are permitted to sell liquor are permitted to carry on activities which are prejudicial to the maintenance of public order and public health with the approval of the concerned Governments. The Supreme Court as well as this Court have in the SCA/5966/2008 10/13 JUDGMENT decisions cited hereinabove as well as in several other cases, held that the activity of bootlegging, per se, cannot be said to be prejudicial to the maintenance of public order and public health. The detaining authority who day in and day out passes orders under the provisions of the PASA Act, cannot be oblivious to the law laid down by the Supreme Court and this Court. However, despite the said position, this Court has noticed that detention orders in exercise of power under sub-section (2) of section 3 of the PASA Act are passed at the drop of a hat, depriving the detenue of his liberty without any justifiable cause or reason. This certainly could not have been the intention of the Legislature. 12.On the facts of the present case, acting upon prior information, a Suzuki Motorcyle was searched on 11th March, 2008 in the noon, and the petitioner and his brother aged 22 years and 25 years respectively, were apprehended with cans of liquid, alleged to be country liquor and were arrested and a first information report came to be registered against them. On the next day, i.e., 12th March, 2008 the concerned police authority moved an application seeking remand of the accused, whereas the petitioner and his brother moved applications seeking bail. By separate orders dated 12th March, 2008 the remand application came to be rejected and the bail applications came to be allowed. On the same day, i.e. on 12th March, 2008 the Sponsoring authority sent a proposal for detaining the petitioner and his brother under the provisions of the PASA Act and on the very same day the SCA/5966/2008 11/13 JUDGMENT detaining authority has passed the impugned order of detention. From the facts noted hereinabove, it is surprising as to within what time the orders passed on the bail application and the remand application were obtained and as to when the sponsoring authority prepared the proposal and put it before the detaining authority and when did the detaining authority examine the same and pass the impugned order. All the concerned authorities appear to have acted with lightening speed. However, the order of detention is totally silent as regards how the activities of the petitioner are prejudicial to the maintenance of public order or public health. There is just a bald assertion that the petitioner is carrying on activities of a bootlegger, based on which the detaining authority has on the basis of assumptions, arrived at the subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order and public health. The only material for coming to the aforesaid conclusion is the solitary first information report registered against the petitioner under the provisions of the Bombay Prohibition Act, 1949 that too on the previous day. While making such hasty orders, the detaining authority probably has lost sight of the other very important aspect, namely, that he is by such action depriving two youths aged 22 and 25 years of their liberty without any reasonable cause, as well as the consequences and fall out of the detention, which the youth would undergo, and the effect it would have on their future conduct. The manner in which the power under sub-section (2) of section 3 of the PASA Act has been exercised in the present case is, to say the least, SCA/5966/2008 12/13 JUDGMENT shocking. 13.For offences under the Bombay Prohibition Act, there are ample safe guards and the said law provides for punishment for the offences under the said Act. The provisions of the said Act cannot be by-passed in this manner by holding that an offence under the said Act, per se is prejudicial to the maintenance of public order and public health. 14.From the facts noted hereinabove, it is apparent that the subjective satisfaction arrived at by the detaining authority that the activities of the petitioner are prejudicial to the maintenance of public health and public order is based on no evidence or material on record and as such is vitiated. In the circumstances, the impugned order of detention cannot be sustained. 15.For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order of detention dated 12th March, 2008 passed by the Police Commissioner, Ahmedabad City is hereby quashed and set aside and the detenu – Bhanvarsing Narsing Rajput is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute. Costs of this petition are quantified at Rs.5,000=00 [Rupees five thousand only]. Direct Service is permitted. [HARSHA DEVANI, J.] SCA/5966/2008 13/13 JUDGMENT parmar*