SCA/8204/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8204 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = DINESHBHAI KATHADBHAI JATWADA - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= Appearance : MR MM TIRMIZI for Petitioner(s) : 1, MR HUKUM SINGH, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1, 3, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/09/2008 ORAL JUDGMENT 1. This petition under Article 226 of the Constitution of India is directed against the order of preventive detention SCA/8204/2008 2/8 JUDGMENT dated 13th March, 2008 made by the Police Commissioner, Rajkot City in exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (the PASA Act) ordering that the petitioner be detained to prevent him from acting in a manner prejudicial to the maintenance of public order. The order was executed on the same day. The petitioner is thus detained under the Act since 10th March, 2008. During the pendency of the petition, on 20.5.2008 and 2.6.2008, the petitioner has made a representations to the State Government against the order of detention. 2. Rule was issued on the petition on 17th July, 2008, however, neither the detaining authority nor the State Government, have filed any counter to the petition. 3. Heard Mr.M.B.Saiyed, learned advocate for Mr.M.M.Tirmizi, learned advocate for the petitioner and Mr.Hukum Singh, learned Assistant Government Pleader for the respondents. 4. The impugned order is challenged on many grounds; however, the core ground is that there is no material on record for the detaining authority to arrive at the subjective satisfaction that the petitioner was acting in a manner prejudicial to the maintenance of public order. 5. The grounds which are annexed to the detention order SCA/8204/2008 3/8 JUDGMENT show that on the date of passing of the detention order, one solitary criminal case registered on 16.2.2005 was pending against the petitioner under Sections 66B, 65E and 81 of the Bombay Prohibition Act, 1949. A perusal of the impugned order shows that the detaining authority has, upon perusal of the material on record, found that the activities of the petitioner of selling country liquor are prejudicial to the maintenance of public order and public health and were required to be prevented immediately. That, as such, the activities of the petitioner fall within the ambit of bootlegger as defined under Section 2(b) of the Act. The detaining authority has, accordingly, recorded satisfaction that antisocial activities of the petitioner are obstacle to the maintenance of public order and public health of the general public in the Rajkot city. Hence, it is necessary to prevent the petitioner from carrying on the activities which are prejudicial to the maintenance of public order and public health. This, in sum and substance, is the satisfaction recorded by the detaining authority. 6. A perusal of the entire grounds of detention clearly shows that the only ground for arriving at the satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order is that the petitioner is a bootlegger. There is nothing to show as to how the activities of the petitioner are prejudicial to the maintenance of public order nor is there any material on record to support such a finding. Merely on the basis of the fact that a solitary offence under the Bombay SCA/8204/2008 4/8 JUDGMENT Prohibition Act has been registered against the petitioner, the detaining authority has arrived at the subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order and public health. Insofar as the activities being prejudicial to public health, there is nothing on record to show as to how the activities of the petitioner are prejudicial to public health, or that the activities of the petitioner are causing or likely to cause widespread danger to life or public health. The only reason given is that despite the fact that country liquor is injurious to public health, the petitioner was carrying on the activity of selling country liquor. Thus, according to the detaining authority the activity of selling country liquor, per se, amounts to an activity that is prejudicial to the maintenance of public order and public health. 7. It is settled legal position as held by the Supreme Court in the case of Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and another, 1989 Supp (1) SCC 322 that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If an act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of ‘public order’. On the facts of the said case the SCA/8204/2008 5/8 JUDGMENT petitioner therein was detained on the ground that he was a bootlegger and that some incidents of beating by the petitioner had taken place, as alleged by witnesses. According to the Supreme Court the said incidents did not have any bearing on the maintenance of public order. It was further held that: “The petitioner may be punished for the alleged offences committed by him but, surely, such acts constituting the offences cannot be said to have affected the even tempo of life of the community. It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of section 3 of the Act, his activities as bootlegger affect or are likely to affect adversely the maintenance of public order. We have carefully considered the offences alleged against the petitioner in the order of detention and also the allegations made by the witnesses and, in our opinion, these offences or the allegations cannot be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of maintenance of public order. The order of detention cannot, therefore, be upheld.” 8. A Division Bench of this Court vide judgement and order dated 22nd August, 2000 rendered in the case of Ashokbhai Balabhai Makwana v. State of Gujarat, SCA/8204/2008 6/8 JUDGMENT Letters Patent Appeal No.223 of 2000, after considering the decision of the Supreme Court in the case of Kanuji S. Zala v. State of Gujarat, 1999 (2) GLH 415 held that a bald observation that the activities of the petitioner were an obstacle to public health and public order 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. The Court further held that the litmus test to find out whether it is a case of breach of public order or breach of public health is that credible material has to be there. In the facts of the said case, apart from the allegation that the petitioner was a bootlegger based on some registered cases, there were some unregistered cases and statements of anonymous witnesses against the petitioner therein. The Court held thus: “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 SCA/8204/2008 7/8 JUDGMENT of arriving at the satisfaction with regard to breach of public order or public health.” 9. On the facts of the present case a perusal of the detention order shows that after giving the particulars of the criminal case, the detaining authority has simply observed that the petitioner’s activities were an obstacle to the public health and public order without there being any credible material in support thereof. Thus, there is no material on record except the solitary case registered against the petitioner under the provisions of the Bombay Prohibition Act. As held by the Supreme Court as well as this Court in the decisions cited hereinabove, mere registration of criminal cases cannot by itself be said to be a material for holding that the petitioner’s activities have become a threat to public order or public health. 10.The decision of this court in case of Salam Abdul Hanifshaibhai Through Wife Hajirabibi Salam vs. (The) District Magistrate and Ors. [2007 (3) G.L.H. Page 131] on which reliance has been placed by the learned Assistant Government Pleader does not lend any support to the case of the respondents as in the facts of the said case, it was found that the detaining authority had arrived at the satisfaction that the petitioner therein was a bootlegger and his activities were prejudicial to the maintenance of public order as well as about the likelihood of his activities causing widespread danger to the public health by the scale of his operations which were all substantiated by credible and cogent material. SCA/8204/2008 8/8 JUDGMENT In the present case, there is nothing to show that the activities of the petitioner were carried out on a large scale nor is there any credible or cogent material to substantiate the satisfaction arrived at by the detaining authority that the activities of the petitioner are prejudicial to the maintenance of public order or public health. In the circumstances, the subjective satisfaction recorded by the detaining authority being based on no evidence, stands vitiated and as such the order of detention cannot be sustained. 11.For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned order of detention dated 13th March, 2008 made by the Police Commissioner, Rajkot City is hereby quashed and set aside and the detenu – Shri Dineshbhai Kathadbhai Jatwada, 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. [HARSHA DEVANI, J.] parmar*