IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9979 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MOHMMAD HANIF @ LONDRY ABDUL KADAR INTWALA Versus COMMISSIONER OF POLICE, -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9979 of 2004 MS DR KACHHAVAH for Petitioner No. 1 MR KAMLESH KACHHAVAH for Petitioner No. 1 MRS HB PUNANI AGPor Respondents -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 17/01/2005 ORAL JUDGEMENT 1. By way of filing this Special Civil Application under Article 226 of the Constitution of India, the petitioner has challenged his detention order passed against him by Police Commissioner, Surat City, on 15th of July, 2004, in exercise of powers conferred upon him under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (PASA Act for short) directing detention of present petitioner as bootlegger within the meaning of the PASA Act. The petitioner came to be detained in pursuance of the said order from 15th of July, 2004. 3. The grounds placed on record of detention reveal that the detaining authority took into consideration the investigation papers of two crimes registered against the petitioner before Salabatpura Police Station and the other before the D.C.B. Police Station on 28th of May, 2004 and on 3rd of June, 2004 under the Bombay Prohibition Act, wherein the petitioner was found in bulk of illegal liquor. After going through entirely the investigation papers, the detaining authority arrived at the subjective satisfaction that the petitioner was dealing in storing, selling and transporting illegal liquor and thereby was indulged in illegal activities so as to be declared bootlegger within the meaning of the PASA Act. The detaining authority also arrived at the subjective satisfaction that the illegal activity of the petitioner was required to be prevented forthwith and the action under general law was likely to take time. The detaining authority also reached to the subjective satisfaction that due to bootlegging activities of the petitioner, public order was disturbed and the public health was adversely affected. Therefore, as a last resort, the detaining authority passed the order, which is under challenge in this petition. 4. Learned Advocate Mr. Kamlesh Kachhavah for the petitioner and learned AGP Mrs. Hansa B. Punani for the respondents were heard at length. The affidavit-in-reply filed by the detaining authority as placed on record by learned AGP is also taken into consideration. 5. Out of various grounds urged on behalf of the petitioner to challenge the order of detention and controverted and opposed by learned AGP, it appears that this petition can be disposed of examining the issue whether there was sufficient material placed before the detaining authority to reach the subjective satisfaction that activities of the petitioner was causing disturbance to public order and was adversely affecting the public health. 6. Undoubtedly, except investigating papers in two crimes registered against the petitioner under the Bombay Prohibition Act, no other material was placed before the detaining authority to arrive at the subjective satisfaction that the activities of the petitioner was prejudicial to the maintenance of public order. A line has to be drawn between "breach of public order " and "breach of law and order". In the facts of the present case, merely the registration of two crimes against the petitioner cannot be said that the activities of the petitioner was causing harm, danger or alarm or feeling insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. At the most, registration of crimes against the petitioner may be termed as breach of law which can be take care of by filing cases against the petitioner. Therefore, the offences registered in two cases against the petitioner on the ground that he was dealing in liquor have no bearing on the question of maintenance of public order especially in the absence of any other material that those activities of the petitioner have adversely affected the maintenance of public order. The petitioner may be punished for the alleged offences committed by him but surely the act constituting the offences cannot be said to have affected even the tempo of life of the community. In this view of the matter in total absence of material before the detaining authority to reach to the subjective satisfaction that the activities of the petitioner were prejudicial to the maintenance of public order, the said subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law. In this view of the matter, order under challenge is required to be quashed and set aside. 7. In the result the petition is allowed. The order passed by Commissioner of Police, Surat City, on 15th of July, 2004, against the petitioner in exercise of powers under Section 3(1) of the PASA Act is hereby quashed and set aside. The petitioner - Mohmmad Hanif alias Londry Abdul Kadar Intwala is hereby ordered to be set at liberty forthwith if he is not required to be detained in jail for any other purpose. Rule made absolute. DS permitted. (J.R. Vora, J.)