SCA/10989/2006 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10989 of 2006 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 ? ====================================== MANILAL NIDHARBHAI CHAUDHARI (DETENU) Versus DISTRICT MAGISTRATE, NAVSARI AND OTHERS ====================================== Appearance : MS DR KACHHAVAH for Petitioner,MR KAMLESH KACHHAVAH for Petitioner. RULE SERVED for Respondent(s) : 1 - 2. MR ND GOHIL, AGP for Respondent No. 3. ====================================== CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR Date : 12/07/2006 ORAL JUDGMENT This petition is filed by the brother of the detenu. By filing this petition, the petitioner has challenged detention order of the detenue dated 31-3-2006, by which the detenue is detained as a “bootlegger” SCA/10989/2006 2/6 JUDGMENT under Gujarat Prevention of Anti Social Activities Act [hereinafter referred to as PASA Act]. With the detention order, the detenue is also served with the grounds of detention. In the grounds of detention, there is a reference to a solitary case pending against the detenue. The aforesaid case is registered with Gandevi Prohibition Police Station being Gunah Register No.159/2006 under the Bombay Prohibition Act. It is alleged that the detenue is dealing in foreign liquor. Mr.Kacchavah, learned advocate for the petitioner submitted that except a solitary criminal case, there is no other material available for coming to the conclusion that the detenue is a “bootlegger”. He further submitted that no statement of any independent witness is recorded by the detaining authority for coming to the conclusion that the activities of the detenue are prejudicial to public order or even tempo of public life is disturbed by his activities. It is submitted that at the most it can be said that the detenue has violated law and order and not public order. In order to substantiate his say, learned advocate for the petitioner has also relied upon the decision of the Supreme Court in District Collector, Ananthapur and another vs. V. Laxmanna reported in 2005 AIR SCW 1822. In the aforesaid case, the Supreme Court has observed as under in paragraphs 7 and 8 : “7. We do not think this argument of the learned counsel can be accepted. If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to him that the arrack dealt with by the detenu is an arrack which is dangerous to public SCA/10989/2006 3/6 JUDGMENT health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation. 8. Therefore, while holding that dealing with arrack which is dangerous to public health would become an act prejudicial to the maintenance of public order attracting the provisions of the Act. It must be held that it is obligatory for the detaining authority to provide the material on which it has based its conclusion on this point. Therefore, we are in agreement with the High Court that if the detaining authority is of the opinion that it is necessary to detain a person under the Act to prevent him from indulging in sale of goods dangerous for human consumption the same should be based on some material and the copies of such material should be given to the detenu.” In order to substantiate his say, learned advocate for the petitioner has also relied upon the decision of the Division Bench of this Court rendered in Letters Patent Appeal No 223 of 2000 in Special Civil Application No. 554 of 2000 in the case of Ashok Balabhai Makwana V. State of Gujarat. In paragraph 5 of the said judgement, Division Bench of this Court has held 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 SCA/10989/2006 4/6 JUDGMENT 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 mater keeping in view the observations made by SCA/10989/2006 5/6 JUDGMENT 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 AGP has submitted that it is true that except solitary case, there is no other material against the petitioner. Accordingly, learned AGP is not in a position to substantiate his say that the activities of the petitioner are prejudicial to public health. Considering the aforesaid aspect of the matter as well as after considering the judgement of the Supreme Court as well as of Division Bench of this Court and considering the fact that there is nothing to show that the activity of the detenue is prejudicial to public health, at the most it can be said that the detenue is guilty of violating law and order but it cannot be said that the activity of the detenue is prejudicial to public health. Therefore, the impugned order of detention is required to be quashed and set aside. SCA/10989/2006 6/6 JUDGMENT In order to see that the detenu is not tempted to commit the offence again, learned advocate for the petitioner has made a voluntary statement that if the detenu is out of judicial custody, he will not leave Chikhli Taluka of Navsari District upto 30th September, 2006 except for attending pending criminal cases or for complying with the condition of bail, if any. This voluntary statement is recorded, it is for the concerned authority to monitor the same. In view of what is stated herein above, this petition is allowed. Order of detention dated 31-3-2006 is quashed and set aside. Detenu – Manilal Nidharbhai Chaudhari is ordered to be released forthwith unless his presence is required in connection with any other case. Rule is made absolute with no order as to costs. (P.B.MAJMUDAR, J.) /malek