SCA/294/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 294 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 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 ? ========================================================= HASMUKH RAMESHCHANDRA SHAH - Petitioner(s) Versus COMMISSIONER OF POLICE & 3 - Respondent(s) ========================================================= Appearance : MR VIREN G DAVE for Petitioner. Mr.L.R.Pujari, AGP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 15/04/2008 ORAL JUDGMENT 1.Heard Mr.Viren G.Dave for the petitioner and learned A.G.P. Mr.L.R.Pujari for the respondents. Leave to add the name of respondent SCA/294/2008 2/4 JUDGMENT no.4.in the cause title. 2.By way of the present petition, the petitioner- detenu has challenged the legality and validity of the order of detention dated 19-9-2007 passed by the Police Commissioner, Ahmedabad City, in exercise of powers under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985( for short “the Act”). 3.The detaining authority was of the opinion that it is necessary to place the petitioner under preventive detention in order to prevent breach of public order. The petitioner-detenu was found involved in an isolated incident under the provisions of Immoral Traffic (Prevention) Act, 1956 and there was no other material to suggest that the activities of the petitioner are in breach of public order. 4.The learned Advocate for the petitioner-detenu has assailed the order under challenge on various grounds. However,this petition is capable of being disposed of on the sole ground as to whether there was credible material placed before the detaining authority to come to the conclusion that by the activities of the petitioner, public order was disturbed or that public health was disturbed adversely. 5.To reach to the subjective satisfaction that the said activities of the petitioner were prejudicial to the maintenance of public order and public health, the detaining authority must SCA/294/2008 3/4 JUDGMENT rely upon credible and cogent material that the activities of the petitioner directly or indirectly were causing or were likely to cause any 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 must draw a clear line between the cases falling within breach of law and order and breach of public order. 6.The facts of the present case are squarely covered by a decision of the Apex Court in the matter of Darpan @ Dharban Kumar Sharma vs. State of Tamil Nadu and Ors. (2003) 2 SCC 313 wherein while dealing with solitary instance of robbery as ground for preventive detention, the Apex Court observed that there is nothing on record to show that the reach and potentiality of the incident was so grave as to disturb the even tempo of life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. Solitary instance of robbery was held not relevant for sustaining the order of detention and that such incident could hardly be said to disturb public peace or public order in jeopardy so as to bring the case within the purview of preventive detention. 7.In the present case, the detaining authority has taken into consideration the solitary incident SCA/294/2008 4/4 JUDGMENT involving the petitioner in running a brothel and thus supplying women for immoral trafficking. The question is whether this by itself can be stated to be the activity in breach of public order or public health, more particularly, when there is only an isolated instance. The activities of the petitioner may be prejudicial to law and order for which the petitioner can be adequately punished. There was no material before the detaining authority to suggest that the magnitude of the activities of the petitioner or his repeated or persistent involvement in such activities. The opinion formed by the detaining authority, therefore, is not sustainable in the eye of law as the subjective satisfaction arrived at by the detaining authority is not legal and valid. The order under challenge is required to be quashed and set aside on this ground alone. 8.In the result, the petition is allowed. The impugned order of detention dated 19-9-2007 passed by the Police Commissioner, Ahmedabad City is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute. Direct service is permitted. (M.D.Shah,J.) lee.