SCA/21961/2005 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21961 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? -No. 2 To be referred to the Reporter or not ? -No. 3 Whether their Lordships wish to see the fair copy of the judgment ? -No. 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 ? -No. 5 Whether it is to be circulated to the civil judge ? -No. ============================================================== ASHOK @ BHURIYO S/O RADHA KISHAN PARMAR - Petitioner(s) Versus COMMISSIONER OF POLICE & 2 - Respondent(s) ============================================================== Appearance : MR CHETAN B RAVAL for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 3, ===================================================================== CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 21/12/2005 ORAL JUDGMENT 1.Ashok @ Bhuriyo S/o. Radha Kishan Parmar, petitioner- detenu has filed this habeas corpus petition under SCA/21961/2005 2/8 JUDGMENT Article 226 of the Constitution of India challenging the order of detention dated 5/10/2005 passed by the Police Commissioner, Ahmedabad under the provisions of PASA Act. Petition was filed on 14/10/2005. On 28/10/2005, this Court (Coram:A.S.Dave, J.) has issued rule which was returnable after four weeks. On behalf of respondent, Mr.L.R.Pujari, learned APP appears, therefore, with consent of parties, matter has been placed for final hearing to this Court. 2.The learned advocate for the petitioner has invited my attention to the detention order dated 5/10/2005 passed by the detaining authority under the provisions of PASA Act. The learned counsel has also invited my attention to the order of committal dated 5/10/2005 by which the petitioner-detenu has been sent to Rajkot jail in this behalf. The learned counsel has also invited my attention to the grounds furnished by the detaining authority to the petitioner-detenu on the same day i.e. on 5/10/2005. From the grounds, it revels that petitioner-detenu has committed an offence of Prohibition Act under jurisdiction of G.I.D.C., Vatva Police Station in connection with Criminal Case No.5165 of 2005 dated 3/10/2005 under the provisions of SCA/21961/2005 3/8 JUDGMENT Section 66(B), 65(E) and 81 of the Prohibition Act. It was alleged that petitioner was storing 500 (five hundred) liters of country liquor, one Maruti Car valued at Rs.80,000/- and one mobile phone valued at Rs.1,500/-. 3.It was further alleged that petitioner is carrying anti social activities as carrying on business of liquor and therefore he is falling within the meaning of 'bootlegger' under the provisions of PASA Act and therefore, the authority has passed detention order and detained the petitioner detenu under the provisions of the PASA Act. 4.On behalf of the petitioner, the learned advocate for the petitioner stated that order of detention cannot be sustained because there may be only violation of law and order situation but not public order. Therefore, subjective satisfaction arrived at by the authority on the basis of some grounds is not valid and proper. For the same, the learned advocate has relied upon the judgment of the Hon'ble Supreme Court in the case of Piyush Kantilal Mehta, judgment and order dated 22/8/2000 of the Division Bench of this Court SCA/21961/2005 4/8 JUDGMENT (Coram:M.R.Calla and R.R.Tripathi, J.J.) in L.P.A. No.223 of 2000 in S.C.A. No.554 of 2000 and judgment of the Division Bench of this Court (Coram:C.K.Thakkar, Acting C.J. and K.M.Mehta, J.) in the case of Ashokbhai Jivrajbhai v. Police Commissioner, reported in 2000 (1) GLR 816. 5.On behalf of respondent, Mr.L.R.Pujari, learned APP appears. He has tried to support the order of detention on the basis of grounds stated in the order of detention. The authority has filed affidavit of Mr.K.R.Kaushik. In the affidavit it is stated that after applying mind to the facts of the case, the authority has passed an order. 6.I have considered relevant materials in this behalf. In this case, there is no link between the offence committed by the petitioner-detenu towards the breach of the PASA Act. The authority has failed to exercise the jurisdictional powers. There may be only breach of law and order but not public order. In that connection, the learned advocate for the petitioner- detenu has relied upon the judgment of the Hon'ble Supreme Court in the case of Piyush Kantilal Mehta, SCA/21961/2005 5/8 JUDGMENT judgment and order dated 22/8/2000 of the Division Bench of this Court (Coram:M.R.Calla and R.R.Tripathi, J.J.) in L.P.A. No.223 of 2000 in S.C.A. No.554 of 2000 and judgment of the Division Bench of this Court (Coram:C.K.Thakkar, Acting C.J. and K.M.Mehta, J.) in the case of Ashokbhai Jivrajbhai v. Police Commissioner, reported in 2000 (1) GLR 816. 7.Having heard the learned counsel for both the parties, in my considered view, the detaining authority has passed the order of detention without there being any credible and cogent material in this behalf. Contentions of the petitioner are squarely covered by the decisions of the Hon'ble Apex Court in the case of Piyush Kantilal Mehta (supra) and Division Bench Judgment of this Court (Coram:M.R.Calla and R.R.Tripathi, J.J.) in the case of Ashokbhai Balabhai Makwana and another division bench judgment of this Court (C.K.Thakkar, Acting C.J. and K.M.Mehta, J.) in the case of Ashokbhai Jivrajbhai (supra). And therefore, the order of detention is required to be quashed and set aside. 8.Having heard the rival submissions of the parties and SCA/21961/2005 6/8 JUDGMENT perused the records of the case, I am of the view that only registration of criminal case alone cannot be said to be sufficient enough to arrive at the subjective satisfaction to the effect that the activities of the detenu are prejudicial to the public order. The power to detain a person under the PASA Act is not based on simple facts about registration of crime. There has to be nexus and link for such activities which disturb the public order. The activities of the detenu must in the backdrop of the facts, reflect that such activities disturbed the even tempo or normal life of the community in the locality or disturbed general peace and tranquility or create a sense of alarm and insecurity in the locality. On careful perusal of the grounds of detention order and relying upon the judgment of the Supreme Court in Piyush Kantilal Mehta (supra), judgment and order dated 22/8/2000 of the Division Bench of this Court (Coram:M.R.Calla and R.R.Tripathi, J.J.) in L.P.A. No.223 of 2000 in S.C.A. No.554 of 2000, judgment of the Division Bench of this Court in the case of Ashokbhai Jivrajbhai (supra) and judgment of this Court (Coram:K.M.Mehta, J) in Special Civil Application No.20420 of 2005 decided on 15/11/2005, in my view, it cannot be said that the SCA/21961/2005 7/8 JUDGMENT activities of the detenu are prejudicial to the public order. Therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside. 9.I have considered the facts and circumstances of the case in view of the submissions made by the learned counsel for the petitioner, judgment of the Hon'ble Apex Court in the case of Piyush Kantilal Mehta (supra) and judgment in Letters Patent Appeal (supra) and other judgments cited by the petitioner. Considering all these, I am of the view that the activities of the petitioner may affect law and order situation and not affect the public order and therefore, subjective satisfaction arrived at by the authority is not legal and valid. Therefore, the order of detention passed by the authority is required to be quashed and set aside. 10.In the result, petition is allowed. I hereby quash and set aside the order of detention. Ashok @ Bhuriyo S/o. Radha Kishan Parmar, detenu is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made absolute accordingly with no order as to cost. Direct service SCA/21961/2005 8/8 JUDGMENT is permitted. (K.M.MEHTA, J.) (ila)