IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5583 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- BHANVARSINH @ BHAVJI BHIKHAJI RAJPUT, Versus DISTRICT MAGISTRATE DIST BANASKANTHA -------------------------------------------------------------- Appearance: MS DR KACHHAVAH for Petitioner MR SJ DAVE, AGP for Respondent-State. -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 18/07/2000 ORAL JUDGEMENT The petitioner has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 ( hereinafter referred to as " the Act of 1985" ) by the order dated 7-4-2000, passed by the District Magistrate, Banaskantha at Palanpur,and he has been declared as bootlegger. 2. It is now well settled that unless the activities of a person as bootlegger has disturbed the maintenance of public order, he cannot be detained under the Act. Reliance is placed on a decision of the case of Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491. 3. Learned advocate for the petitioner submitted that there is non-application of mind on part of the detaining authority because while passing the impugned order of detention, the detaining authority has considered Section 56 and 57 of the Bombay Police Act while applying its mind with regard to the aspect of lesser drastic remedy. In support of the contention, learned advocate for the petitioner has relied upon a decision reported in 1992 (2) G.L.H. 350 Bhupatbhai Ramjibhai Vasava v. District Magistrate, Bharuch and others wherein it is held as under : "The learned Advocate for the petitioner submitted that while passing the impugned order of detention, the detaining authority has considered Ss.56 and 57 of the Bombay Police Act while applying its mind with regard to the aspect of lesser drastic remedy. It is stated that the actions under Ss. 56 and 57 of the Bombay Police Act were considered by the detaining authority and it is stated in the grounds of detention that such time will be consumed in taking proceedings under Ss.56 and 57 of the Bombay Police Act and that the detenu is likely to continue his activities in the area in which he will reside because of the externment order and taking into consideration these provisions, the detaining authority has passed the detention order under the provisions of the said Act. Now S.57 of the Bombay Police Act cannot apply as per the activities alleged in the grounds of detention because the petitioner is not convicted in a single offence at any time as envisaged by S.57 of the Bombay Police Act. Section 57 of the Bombay Police Act will apply in a case where the person is convicted of the offences mentioned in S.57 of the Bombay Police Act and, therefore, the subjective satisfaction arrived at by the detaining authority is vitiated because of non-application of mind." 4. So the points raised by the petitioner are fully covered by the decision reported in 1992 (2) G.L.H. 350 ( Supra. Since the petitioner succeeds only on this point, learned advocate for the petitioner does not press any other points. 5. In view of the aforesaid discussion, the petition is allowed. The impugned order of detention dated 7-4-2000 passed against the detenu is hereby quashed. The petitioner-detenu Bhanvarsinh @ Bhavji Bhikhaji Rajput is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute accordingly with no order as to costs. ( R.P.Dholakia, J.) *mithabhai