IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6275 of 2005 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? -------------------------------------------------------------- RAJENDRASINH BALVANTSINH SANDHU (SARDAR) Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6275 of 2005 MS SUBHADRA G PATEL for Petitioner No. 1 GOVERNMENT PLEADER for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 11/05/2005 ORAL JUDGEMENT 1. This Special Civil Application under Article 226 of the Constitution of India has been filed by the petitioner detenu Rajendrasinh Balvantsinh Sandhu (Sardar) challenging his detention in pursuance of the order passed against him by the District Magistrate, Vadodara, on 19th of February, 2005, 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). The petitioner is under detention as Bootlegger from 19th of February, 2005. 2. The grounds of detention as placed on record, reveal that the Detaining Authority took into consideration two types of materials to arrive at the subjective satisfaction. Firstly, the detaining authority took into consideration a fact of filing of a solitary crime against the petitioner before Vaghodiya Police Station on 9th of January, 2005, for breach of the provisions of Bombay Prohibition Act, whereby it was alleged that the petitioner was found in huge quantity of bottles of prohibited foreign liquor. Secondly, the Detaining Authority relied upon three in-camera statements of the witnesses, as recorded by the Sponsoring Authority on 16th of January, 2005 and verified by the Detaining Authority on 1st of February, 2005. The identity of the witnesses is not disclosed by the Detaining Authority, claiming privilege under Section 9(2) of the PASA Act. The Detaining Authority thoroughly and exhaustively examined the investigation papers in the said solitary offence and concluded that the petitioner was dealing in storing, selling and transporting prohibited liquor. 3. Out of three in-camera statements, first witness referred to an incident occurred before one and half months of the recording of his statement. At about 4=00 p.m., the petitioner approached the witness at his field in one truck. The petitioner insisted the petitioner to conceal the bulk of the prohibited liquor in his field. The witness refused and thereupon the petitioner got excited and with a knife started beating up the witness. A complice of the petitioner also started beating the witness. Other farmers in adjoining fields noticed the incident, but none dared to rescue the witness. Ultimately, the witness ran away from that place. Second witness referred to an incident occurred before a month of recording of his statement. At about 5=00 a.m. the witness was standing at the bus-stand of his village. He was approached by the petitioner and his accomplices in a truck and they directed the witness to conceal the bulk of the prohibited liquor at the residence of the witness. The witness refused to do so and, thereupon he was beaten up by the petitioner and his accomplices. Public order was disturbed. Third witness referred to an incident occurred before two months of recording of his statement. At about 7=00 p.m. the witness was working in his field and he was approached by the petitioner in his truck loaded with prohibited liquor. The petitioner insisted the witness to conceal the bulk of prohibited liquor in a room near the well of the field. The witness refused and therefore, he was beaten up by the petitioner and his accomplices. The public order was disturbed. 4. Relying upon the above material, the Detaining Authority came to the conclusion that the petitioner was a bootlegger within the meaning of PASA Act and to execute his illegal activities he was harassing innocent citizens who became obstacles. In view of the Detaining Authority, the activities of the petitioner were prejudicial to the maintenance of the public order and public health and were required to be prevented forthwith. After considering remedies available against the petitioner under the general law, the Detaining Authority concluded that there was no other alternative except to detain the petitioner under the PASA Act. The Detaining Authority, therefore, passed the order of detention, as aforesaid, which is under challenge in this petition. 5. Heard Ms.Shaikh, for Mrs.S.G.Patel, learned Advocate on behalf of the petitioner and learned AGP Ms.H.B.Punani for the respondents were heard at length. 6. Out of various grounds urged on behalf of the petitioner and oppsed and controverted by the by learned AGP, it appears that this petition can be examined and disposed of only on the issue that whether there was credible and cogent material material placed before the detaining authority to come to the conclusion that by the activities of the petitioner, the public order was disturbed and public health was adversely affected. 7. To reach to the subjective satisfaction that bootlegging activities of the petitioner were prejudicial to the maintenance of public order and public health, the detaining authority must rely upon credible and cogent material indicating that the activities of the detenu directly or indirectly were causing or were likely to cause harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or the public health. While undertaking this exercise, the detaining authority has to draw a clear line between the cases falling within the category of breach of law and order and the cases falling within the category of breach of public order. 8.Referring to the solitary case filed against the petitioner under the Bombay Prohibition Act for the possession of prohibited liquor, and going through the investigation papers as placed on record, it is found that the case came to be filed against the detenu because he was dealing in prohibited liquor. The possession of prohibited liquor is a breach under the Bombay Prohibition Act and hence cases came to be filed. However, merely filing cases under the Bombay Prohibition Act would not result in a conclusion that the activities of the petitioner were disturbing the public order or was affecting adversely to the public health. At the most, the petitioner might have committed breach of the provisions of law, for which the petitioner may be tried and punished if found guilty, but surely the act constituting the offence in dealing in prohibited liquor cannot be said to have affected the even tempo of the life of the community nor the activities revealed through the investigating papers indicate that in the activities alleged through these cases, society at large or section of the society or community or particular community was involved. Therefore, the case may be instance of breach of law and order, but cannot be branded as activities disturbing the public order or affecting the public health. 9. Further while referring to the in-camera statements, as recorded by the sponsoring authority and verified by the detaining authority, it must be borne in mind that while reaching to the subjective satisfaction about the alleged activities of the petitioner, it would be necessary for the detaining authority to consider fall out, reach and impact of the activities of the petitioner and thereafter to come to the conclusion that such activities were capable of disturbing the public order. Three incidents, as narrated through in-camera statements, reveal individual disputes than to involve society at large or even disturbing the even tempo of the life of the community. The potentiality of the act alleged through in-camera statements, even from the bare reading of them, are not capable to be branded as to the activities disturbing the even tempo of life of the community or society at large or section of the society. No widespread danger or harm to the society could be inferred from the statements of the witnesses. Therefore, even after taking them on their face value, those incidents, may be instances of disturbing law and order, which can be taken care of by general law and by no stretch of reasoning, such activities can be branded to be disturbing the public order or affecting adversely to the public health. 10. In the matter of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI vs. POLICE COMMISSIONER, SURAT and Ors. as reported in 2000 (1) GLH 393, wherein the Division Bench of this Court after considering the decision of the Apex Court, observed in paras 20 and 21 as under : "20 The Division Bench then considered the law laid down by the Apex Court in Piyush Kantilal v. Commissioner of Police, Ahmedabad City, AIR 1989 SC 491 and Two. Devaki vs. State of Tamil Nadu, AIR 1990 SC 1086. In Piyush Kantilal, similar circumstances were before the detaining authority and it was alleged that detention of the detenu was necessary in order to prevent activities of the detenu in maintenance of public order. Similarly in Two. Devaki, panic amongst people in the hall in which the incident took place and in nearby vicinity was highlighted. It was also alleged that people were scared and had run helter-skelter. In spite of such allegations, the Supreme Court held that they were not cases of maintenance of public order and hence, no action of preventive detention was uncalled for. 21. The Division Bench, following the above cases, observed that in the opinion of the Supreme Court, the selective phrases in the statements would not take out the case from maintenance of law and order to that of maintenance of public order and as power of detention, could not be used for maintenance of law and order, but only for public order, the order of detention made in such circumstances could not be upheld. Again in Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police and Others, 1995 (2) GLR 1268 (Sc), the Supreme Court considered the relevant decisions on point including the decisions in Arun Ghosh v. State of West Bengal, 1979 (1) SCC 98 and held that stray incidents would not affect "public order" and order of detention cannot be passed in such cases." 11. The present set of facts are squarely covered by the above decision of this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki (supra) and therefore the subjective satisfaction arrived at by the detaining authority in respect of disturbance of public order by the alleged activities of the petitioner cannot be said to be legal, valid and in accordance with law. The order under challenge, therefore, is required to be quashed and set aside on this ground alone. 12. In the result, the petition is allowed. The order passed by District Magistrate, Vadodara, on 19th of February, 2005, against the petitioner in exercise of powers under Section 3(1) of the PASA Act is hereby quashed and set aside. The petitioner - Rajendrasinh Balvantsinh Sandhu (SARDAR), is hereby ordered to be set at liberty forthwith if she is not required to be detained in jail for any other purpose. Rule made absolute. DS permitted. (J.R. Vora, J.) 11.05.2005 amit