SCA/23078/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23078 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE P.B.MAJMUDAR ========================================================= 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 ? ========================================================= GOVIND ALIAS GOVINDDADA SITARAM MARATHI (JHANJHE) - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MS KRISHNA U MISHRA for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. Mr. N.D. Gohil, Asst. GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR Date : 14/06/2006 ORAL JUDGMENT By filing this petition, the petitioner detenu SCA/23078/2005 2/7 JUDGMENT has challenged detention order dated 11.10.2005. By the aforesaid detention order, the petitioner is detained as a Bootlegger under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 [hereinafter referred to as PASA Act]. In the grounds of detention, there is a reference to three criminal cases pending against the petitioner. These cases are filed under the provisions of the Bombay Prohibition Act. The detaining authority, after having been subjectively satisfied, has detained the petitioner under PASA Act. Learned advocate for the petitioner submitted that except the pending criminal cases, the detaining authority has not relied upon any other material, nor statement of any witness is recorded to show that the activities of the petitioner is prejudicial to public health. It is submitted by the learned advocate for the petitioner that by committing the offences under the Bombay Prohibition Act, the petitioner can at the most be said to have committed violation of law, and not public order. It is submitted that there is no credible material on record to show that the activities of the petitioner is prejudicial to public health. Learned advocate for the detenu has relied on the judgment of a Division Bench of this Court, [Coram: M.R. Calla & R.R. Tripathi] in the case of Ashok Balabhai Makwana v/s. State of Gujarat in LPA SCA/23078/2005 3/7 JUDGMENT No. 223 of 2000. Learned advocate for the petitioner has relied on paragraph 5 of the judgment, which reads as under: “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 SCA/23078/2005 4/7 JUDGMENT 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 SCA/23078/2005 5/7 JUDGMENT 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 mater 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.” Mr. N.D. Gohil, learned Additional Public Prosecutor on the other hand submitted that as per SCA/23078/2005 6/7 JUDGMENT the FSL report, it is found that the petitioner was dealing in alcoholic substance. He further submitted that country liquor is normally injuries to public health and it may result into a hooch tragedy in a given case. In the instant case, it is required to be noted that the Detaining authority has not taken statement of any witness in the area to the effect that because of the said activities, public order in the area is disturbed. Considering the aforesaid aspect as well as considering the fact that there is no material finding place on the record worth the name even in the form of statement of witnesses to show that the activities of the petitioner are such which will be prejudicial to public health, at the most it can be said that the activities of the petitioner are in breach of law and order, and not public order. For the reasons recorded above, and more particularly in view of the judgment of the learned Single Judge referred to hereinabove, this petition is allowed. Order of detention dated 11.10.2005 passed against the detenu is quashed and set aside. The detenu is ordered to be released forthwith unless he is required in connection with any other offence. Rule is made absolute, with no order as to costs. At this stage, learned advocate for the detenu fairly submitted that in connection with the third case, the petitioner is not enlarged on bail. He further SCA/23078/2005 7/7 JUDGMENT submitted that the petitioner shall not move any bail application till 31st August 2006 so that the petitioner may not be tempted to repeat such type of activities. This voluntary statement of learned advocate for the petitioner is recorded. It is for the Learned Additional Public Prosecutor to inform the concerned authorities about this voluntary statement. If any bail application is preferred even thereafter, it will be open to the authorities to resist the same in accordance with law. [P. B. MAJMUDAR, J.] mathew