SCA/17216/2005 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17216 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE A.S.DAVE ============================================================== 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 ? ============================================================== KANTI @ RAJU @ MAHESH LALJIBHAI DABHI - Petitioner(s) Versus COMMISSIONER OF POLICE & 2 - Respondent(s) ============================================================== Appearance : MR SANJAY PRAJAPATI for Petitioner(s) : 1, MRS HANSA PUNANI AGP for Respondent(s) : 1, 3, DS AFF.NOT FILED (R) for Respondent(s) : 1, RULE SERVED BY DS for Respondent(s) : 2, ================================================================== CORAM : HONOURABLE MR.JUSTICE A.S.DAVE Date : 11/10/2005 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of India the order dated 5/7/2005 passed by respondent no.1 Commissioner of Police, Ahmedabad City SCA/17216/2005 2/6 JUDGMENT has challenged on the ground that the exercise power under Sub-section (2) of Section 3 is not reasonable and contrary to the mandate of Constitutional requirement as guaranteed under the fundamental rights and violative of Article 14, 19, 21 and 22 of the Constitution of India. 2. The detenu who is detained as a bootlegger as defined by Section 2(b) of the Act was supplied with the grounds on the very same date along with the order of detention, which reflect registration of two crimes vide C.R. No. 5092 and 5120/05 dated 12/5/2005 and 28/6/2005 at Odhav Police Station for the offence punishable under Section 66(b), 65(e) and 81 of Bombay Prohibition Act, 1949. The registration of aforementioned C.R. is not supported by statements of any independent witnesses and the detaining authority has considered lesser drastic remedies available under ordinary law, which were found inadequate. It was also noticed by the detaining authority that so far C.R. No. 5092/05 is concerned, the case is pending in the Court while for the another C.R. the investigation is on and it has become imperative for the detaining authority to detain the detenu with a view to prevent him from indulging into similar activities in future also. SCA/17216/2005 3/6 JUDGMENT 3. The learned advocate for the petitioner has submitted that registration of various offence under the Bombay Prohibition Act, 1949, in absence of any relevant or credible material about illegal activities carried out by the detenu, which has no bearing or nexuses with the disturbance of public order, the power under Section 3(2) cannot be exercised and order detaining the petitioner as a bootlegger as defined under Section 2(b) of the Act is not warranted. In support of his submissions, the learned advocate for the petitioner has relied on the decision dated 26/2/1004 passed in Special Civil Application No. 16542/03 by this Court and submitted that as per law laid down pertaining to exercise of power under Sub-section(2) of Section 3 is concerned, the same is applicable in the facts of the present case in the order of detention impugned in this petition, requires to be quashed and set aside. 4. The learned AGP Mrs. Hansa Punani has submitted that the activities of the detenu are prejudicial and satisfaction of the detaining authority is based on relative factors of registration of crimes and other anticidents of the detenu and, therefore, the order of SCA/17216/2005 4/6 JUDGMENT detention is to be upheld. 5. Having considered the rival submissions and after perusal of the record of the case, I do not find any relevance in the order of detention, in the factual backdrops narrated therein, about prejudicial activities of the detenu which can disturb the public order or general health of the public. The decision of the learned Single Judge dated 26/2/2004 in Special Civil Application No. 16542/03 has elaborately discussed the reported decisions in Kanuji S. Zala vs. State of Gujarat and Ors. Reported in 2000(4) GLR 3256 and also Om Prakash Vs. Commissioner of Police reported in AIR 1990 Sc 496 and another decision of Piyush Kantilal Mehta vs. Commissioner of Police reported in AIR 1989 Sc 491. After elaborate discussion of the above mentioned authorities and case laws in paragraph 13 and 14 the learned Single Judge has observed as under: 13.The case before the Supreme Court was argued from the aspect of adverse effect of bootlegging activity of detenu on the pubic health. It has been clearly suggested from the observations made in para 5 that while dealing with the cases under Sections 3 and 3(4) of the PASA Act where the persons is aleged to have been indulging in the bootlegging activities, the presence of credible material before the detaining authority has been insisted upon. Thus, reading the judgment as a whole in the case of SCA/17216/2005 5/6 JUDGMENT Kanuji S. Zala (Supra) in cases under Section 3 (4) of the PASA Act where the persons has been indulging in the bootlegging activities over and above the activities alleged, what is required to be considered or what has been insisted upon by the Supreme Court in such cases i.e. cases under Section 3(4)of the PASA Act on the allegations of bootlegging there has to be credible material before the detaining authority on the basis of which reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defined by the Act. Thus, reading the judgment as a whole, it does not appear that in cases under Section 3(4) only bootlegging activities by the petitioner would be sufficient. But, while dealing with to be credible material on the basis of which a reasonable inference can be drawn as regards the adverse effect of the bootlegging activity on the maintenance of public order. 14. In the instant case, except the statement in Ground No.3 as referred to above, there is no credible material before the detaining authority on the basis of which a reasonable inference can be drawn as regards the adverse effect of the bootlegging activity of the detenu on the maintenance of public order. In the case of Kanuji S. Zala (supra) as observed in para 4 that statement of witnesses before the detaining authority clearly showed that the even tempo of public life was disturbed in t hose localities for some time and the material on record also showed that members of the public of those locality had to run away from there or to go inside their houses and closed their doors and in light of this evidence, the Supreme Court held that it cannot be said that the satisfaction of the District Magistrate in this behalf was not reasonable or no such material in the present case appears to have been placed before detaining authority so as to draw a reasonable inference as regards the adverse effect on the maintenance of public order. 5.1 In view of the above settled position of law in the SCA/17216/2005 6/6 JUDGMENT facts of the present case also the order of detention impugned in this petition did not reflect the prejudicial activities of the detenu having nexus or bearing on disturbance of public order or general health of pubic and therefore, the detention order dated 5/7/2005 is quashed and set aside. The detenu, Kanti @Raju@Mahesh Laljibhai Dabhi is ordered to be set at liberty forthwith if he is not required in connection with any other case. 6. Rule is made absolute accordingly. Direct Service is permitted. (Anant S. Dave, J.) smita/