IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5455 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgment? 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? -------------------------------------------------------------- DHANA @ DHANSUKHBHAI BHANABHAIRATHOD Versus DISTRICT MAGISTRATE -------------------------------------------------------------- Appearance: MR MP SHAH for the Petitioner. MS. KRUTI M SHAH for the Petitioner. Mr.A.Y. Kogje, Assistant GOVERNMENT PLEADER, for Respondent No. 1-3 RULE SERVED for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 19/08/2004 ORAL JUDGEMENT By filing this petition, the petitioner-detenu has challenged his detention order dated 4th March, 2004, by which he is detained as a 'bootlegger' under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985 ("PASA", for short) Along with the detention order, the petitioner is also served with the grounds of detention. In the aforesaid grounds, there is a reference about two criminal cases, which are pending against the petitioner. The aforesaid cases are registered against the petitioner under the Bombay Prohibition Act. Except this, there is no other material, based on which the detention order could have been passed. The Authority has not recorded statements of witnesses. It is the aforesaid order which is impugned in this petition. The learned Advocate for the petitioner, vehemently submitted that so far as the aforesaid two cases are concerned, they are in connection with violation of prohibition law. She further submitted that, in the instant case, the Authority has not recorded statements of any of the witnesses. She also further submitted that by considering the registered cases under the Prohibition Act, it cannot be said that the petitioner has violated public order. She has also further submitted that there is no material to show that the activities of the petitioner are injurious to public health, as there is no contemporaneous record in this behalf. In order to substantiate the said say, the learned Advocate for the petitioner has placed reliance upon the decision of a Division Bench of this Court in L.P.A. No.223 of 2000, wherein this Court held as under, in paragraph 5 :- " ... ... ... 5. If we examine the present case on the anvil of the test which has been applied by the Supreme Court in the case of K.S.Zala v. State of Gujarat (Supra), i.e. with regard to the presence of credible material and as to how the detaining authority has made the mention against the appellant being an obstruction to the public health and public order, we find that in the instant case so far as the statements of the witnesses which were recorded with regard to unregistered cases, that ground has been rejected by the learned Single Judge himself. It is, of course, true that after narrating the particulars of the criminal cases, the detaining authority has mentioned that the activities of the appellant were an obstacle to the public health and public order, but this bald observation 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. No observation made in any part of the judgement can be read in isolation and bereft the context. The judgement is to be read as a whole and even the observations which have been made by the Supreme Court in para 6 of the judgement are to be considered in light of the earlier observations made in para 5 where presence of credible material before the detaining authority has been insisted upon. Thus, litmus test to find out as to whether it is a case of breach of public order or breach of public health is concerned, credible material has to be there. In the case of K.S.Zala before the Supreme Court, the detaining authority had also relied upon the statements of the witnesses so as to show that violence resorted to by the petitioner in that case had disturbed the even tempo of public life and the material on record had shown that members of the public of those localities had to run away from there and to go inside their houses and to close their doors. No such fact situation has been mentioned in the present case and the ground with regard to the statements of the three witnesses has been rejected by the learned Single Judge himself and it has been held that there had been violation or infringement of the petitioner's right against such statements. In this view of the matter whatsoever said by the three witnesses with regard to unregistered cases and with regard to the three incidents referred to hereinabove, it cannot be considered to be the material germane for the purpose of consideration of the threat to the public health and public order. 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 and we find that after giving particulars of criminal cases, the detaining authority by including certain allegations, not supported by any credible material has simply observed that the appellant's activities were an obstacle to the public health and public order. In this view of the matter keeping in view the observations made by the Supreme Court in the case of K.S.Zala v. State of Gujarat (supra) itself in paras 4 and 5, we do not find that it can be held to be a case of breach of public health and public order. Learned counsel for the appellant has also argued several other points before us, but we do not find it necessary to go into those grounds. It may be mentioned that it was not a case of breach of public order or public health and it was not argued before the learned Single Judge. Even if that be so, in such matters, the point which arises on the face of the facts of the case by the body of the order itself, which does not require further investigation of the facts, can certainly be allowed to be raised and we allow learned counsel for the appellant to raise this point and find that this point is not without substance. The impugned order passed by the learned single Judge upholding the detention order therefore, cannot be said to be in consonance with the settled position of law. The detention order deserves to be quashed and set aside on this ground alone. We, therefore, do not go into other grounds which were raised on behalf of the appellants. ... ... ...." From the above decision, it is clear that the Division Bench of this Court has taken a view that the registered criminal cases, by themselves, cannot be said to be a material for the purpose of holding that the activities of the petitioner had become a threat to the public order, or that the activities of the detenu are injurious to public health. Even looking to the detention order also, it seems that from the last registered case, there is a delay of more than one-and-a-half months, as the last registered case is dated 22nd January, 2004 and the detention order is dated 4th March, 2004. In between no statements of witnesses have been recorded. Of course, this ground has not been taken in the petition, but it was argued during the course of the arguments. Considering the aforesaid aspect of the matter, as, it cannot be said that the activities of the petitioner are in violation of public order, as also on the ground of delay in passing the order, the petition is required to be allowed. This petition is accordingly allowed. The order of detention is quashed and set aside. It is ordered that the petitioner be released forthwith unless he is required in connection with any other case. Rule is made absolute. ( P.B. Majmudar, J. ) *** (apj)