SCA/892/2007 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 892 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 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 ? 1 & 2 YES; 3 to 5 NO ========================================================= SALAM ABDUL HANIFSHAIBHAI THRO' WIFE HAJRABIBI SALAM - Petitioner(s) Versus THE DISTRICT MAGISTRATE & 2 - Respondent(s) ========================================================= Appearance : MR ANIL S DAVE with MS KRUTI M SHAH for Petitioner : 1, MR DIPEN DESAI ASSTT GOVERNMENT PLEADER for Respondents(s) : 1-3. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 02/08/2007 C.A.V JUDGMENT : 1. The petitioner-detenu has, through his wife, invoked Articles 21, 22 and 226 of the Constitution with a prayer to set aside the order SCA/892/2007 2/34 JUDGMENT dated 20.12.2006 by which he was ordered to be detained under the provisions of section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, "PASA"). According to the grounds of detention furnished to the petitioner, he is alleged to have indulged in bootlegging and five cases of offences punishable under the Prohibition Act have been registered against him. Out of those five cases, he is stated to have been arrested and released on bail in three cases while he was wanted in two cases. In the first case registered at Kamrej Police Station vide III-C.R. No.261 of 2006, he is alleged to be the owner of 780 bottles of liquor of different brands which were caught while being transported on 26.6.2006. When the petitioner was arrested on 8.10.2006 pursuant to that case, he is stated to have admitted his guilt in his statement before police. In two other cases registered at Palsana Police Station vide III-C.R. Nos.889 and 890 of 2006, he was caught in connection with transportation of 4210 and 1254 bottles of liquor. In another case registered with Palsana Police Station vide III-C.R. No.1057 of 2006, 6388 bottles of liquor which were to be supplied to the petitioner were caught and he is stated to have escaped while he was piloting the vehicle carrying that stock of liquor. In the fifth case SCA/892/2007 3/34 JUDGMENT registered as III-C.R. No.740 of 2006 in Kamrej Police Station, he is stated to have escaped from the premises raided by the police where 191 boxes containing 6792 bottles of "Indian made foreign liquor" ("IMFL" for short) were stored. On the basis of those facts, the petitioner was found to be a "bootlegger" within the meaning and definition of section 2 (b) of PASA and, as stated in the impugned order, activities of the petitioner were likely to adversely affect living conditions and health of the people. Therefore, impugned order to prevent him from acting in a manner prejudicial to maintenance of public order was stated to have been made. 2. The petitioner has challenged the impugned order mainly on the grounds that his alleged activities were required to be dealt with under ordinary law as they did not and could not affect public order. Although he was alleged to be absconding in connection with two criminal cases, no notification or order under the Code of Criminal Procedure, 1973 was issued in that regard and the State had not applied for cancellation of his bail. It is averred that the sponsoring authority has not recorded any statement of any witness which could establish that the activities of the detenu were SCA/892/2007 4/34 JUDGMENT prejudicial to maintenance of public order. It is submitted that the petitioner could not be termed as "bootlegger" or "habitual offender" and that there was unexplained delay in making of the impugned order. It was pointed out by learned counsel Mr.A.S.Dave, appearing for the petitioner with Ms.K.M.Shah, that the detenu was released on bail despite the successive cases of alleged offences and there was no material before the sponsoring authority to infer that the detenu was absconding at the relevant time. Out of the five cases mentioned in the grounds of detention, first three cases were registered before September 2006 and could not form the basis for the order made in December 2006, according to the submission. It was further submitted that the authorities could have resorted to simple and expeditious remedy of cancellation of bail granted to the petitioner. Learned counsel also submitted that there was no material to suggest consumption of liquor by anyone or any harm or injury or likelihood of any harm to health of anyone. The so-called IMFL was not shown to be harmful to public health or to be posing a grave danger to public health, according to the submission. SCA/892/2007 5/34 JUDGMENT 3. Relying upon affidavit of the detaining authority, it was submitted on behalf of the respondent that the proposal and materials received from the sponsoring authority for detention of the petitioner were carefully scrutinized, examined and considered and were found to be sufficient for detaining the petitioner. The grounds of detention were true, correct, clear and proper. After carefully examining the papers pertaining to the five cases registered against the petitioner and after applying mind to the facts of the case, the detaining authority had come to the conclusion that the petitioner was in illegal liquor business and was disturbing public order, public peace and public health and was likely to continue his anti-social and bootlegging activities which may cause grave or widespread danger to life, property and public health. Therefore, after arriving at subjective satisfaction to the effect that anti-social and bootlegging activities of the petitioner could not be curbed or prevented immediately by resorting to less drastic remedy of taking action under the ordinary law, as a preventive measure, the impugned order was passed with a view to immediately prevent the petitioner from continuing such illegal, anti-social and SCA/892/2007 6/34 JUDGMENT bootlegging activities. The impugned order is stated to have been passed after full application of mind and in compliance with the provisions of PASA as well as the Constitution of India. It is stated that all relevant material and vital documents which had a bearing and which were available were placed before the authority and copies of all such documents which were considered and relied upon for passing the order of detention were supplied to the petitioner along with the grounds of detention. 3.1 As for the petitioner not being declared to be an absconding accused person in connection with III-C.R. No.1057 of 2006 and III-C.R.No.740 of 2006, it is stated on behalf of the respondent that, in spite of best efforts on the part of the police, the petitioner could not be arrested and action was already taken to declare him an absconder. It is submitted that there was sufficient cogent and credible material on record which clearly indicated indulgence of the petitioner in anti-social activities having the potential of affecting public health and disturbing public order. It is also stated that, after registration of the offence on 8.12.2006 against the petitioner and as he was absconding, the sponsoring authority had collected necessary SCA/892/2007 7/34 JUDGMENT material and information with regard to his anti- social activities and submitted a proposal dated 19.12.2006 and, after considering the material, facts and circumstances of the case as well as applicable legal provisions, the detaining authority was subjectively satisfied that the petitioner was a bootlegger and his anti-social activities had the potential of disturbing public order. Therefore, in short, the impugned order dated 20.12.2006 was neither delayed nor without application of mind. 3.2 Learned A.G.P. contended that the activity of bootlegging was per se posing danger to public health insofar as the dealing in liquor or any alcoholic drink was prohibited in the State by legislation, namely, the Prohibition Act, 1949, and any supply of alcohol in violation of that law could only result into clandestine consumption thereof which, in turn, was injurious to health and likely to cause widespread danger to public health and public order when dealt in large quantities. 4. Judgment of the Supreme Court in Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City [AIR 1989 SC 491] was heavily relied upon for the petitioner for the SCA/892/2007 8/34 JUDGMENT observations therein that the petitioner may be 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 of bootlegging affect adversely or are likely to affect adversely the maintenance of public order. It is held: "12. Under sub-section (1) of section 3, an order of detention of a person can be passed with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Sub-section (4) of section 3 contains a deeming provision. Under sub-section (4), a bootlegger or a dangerous person or a drug offender shall be deemed to be acting in a manner prejudicial to the maintenance of public order when the activities of such a person affect adversely or are likely to affect adversely the maintenance of public order. In other words, although sub-section (4) contains a deeming provision, such deeming provision will not be attracted unless the activities of the person concerned affect adversely or are likely to affect adversely the maintenance of public order." 4.1 Learned counsel for the petitioner relied upon several judgments of this court which referred and relied upon the above observations of the Supreme Court and submitted that, even in more serious cases of offences under the Prohibition Act, detenus were ordered to be SCA/892/2007 9/34 JUDGMENT released by this court. 4.2 In view of reliance placed for the respondent upon subsequent judgment in Kanuji S. Zala (infra), learned counsel for the petitioner relied upon the later Division Bench judgment of this court in Ashok Balabhai Makwana v. State of Gujarat in LPA No.223 of 2000 decided on 22.8.2000 wherein the court observed: "5. ....It is, of course, true that after narrating the particulars of the criminal cases, the detaining authority had 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 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 judgment can be read in isolation and bereft of the context. The judgment is to be read as a whole and even the observations which have been made by the Supreme Court in para 6 of the judgment 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, to find out as to whether it is a case of breach of public order or breach of public health is concerned, (sic) 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 SCA/892/2007 10/34 JUDGMENT 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....." 4.3 Judgment of this court in Chotumal Sugansingh Rajput v. State of Gujarat [1986 (1) GLR 688] was relied upon for the observation quoted hereunder: "4. ....There is, therefore, a two-fold requirement: (1) The concerned person must be engaged in or making preparation for engaging in any activities, whether as a bootlegger or some such person mentioned in sub- section (4), and (2) The activities of the concerned person must be such as affect adversely or one likely to affect adversely the maintenance of public order. The Explanation to sub-section (4) for the purpose of the said sub-section clearly provides that public order shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub-section (4) directly or indirectly is causing or is likely to cause any harm, danger, alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. The satisfaction referred to above is, of course, subjective satisfaction. If subjective satisfaction is found to have been based on material which satisfies the SCA/892/2007 11/34 JUDGMENT aforesaid two requirements then, in view of the said explanation, the concerned nefarious activities of the proposed detenu will be deemed to have adversely affected the public order." 4.4 Referring to earlier Division Bench decision of this court dated 5.12.1984 in Special Criminal Application No.399 of 1984 arising out of a reference concerning provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the following observations were quoted: ".....We have also indicated that there are two different satisfactions contemplated in the Act and any one of them would sustain the declaration. It may be that the materials before the authority to be so satisfied were such as to justify one satisfaction, namely, that the detenu "smuggles"or it may be that they were such as to justify the other satisfaction, namely that he "is likely to smuggle". The Likelihood of a prejudicial activity, such as smuggling, in the future is to be predicated upon an assessment of the nature of the past conduct. If the past conduct is such as would not lead to an assumption that the person who is responsible for such past prejudicial activity is likely to indulge in such conduct in the future, past conduct by itself may not be relevant. A man who commits a crime, for instance, need not repeat the same crime. He might have committed the crime for various reasons, such as emotional imbalance of the moment, and there would be no justification in all cases, without anything more, to assess that SCA/892/2007 12/34 JUDGMENT he is likely to commit such crime again. There are other crimes which person may indulge in, not because of any momentary emotional imbalance or such other reasons, but because of greed, because of the desires to become quick rich. Operations such as smuggling, hoarding, blackmarketing, illicit dealing in foreign exchange and other activities of a similar character are generally undertaken for economic advantage, in that process exploiting the economic order of the country. Carried on in a reasonably noticeable scale any person could be assumed to do it for undue economic advantage in the matter of satisfaction as to likelihood of persisting in such activity in future." 4.5 Learned advocate Mr.Dave vehemently argued that the presumption of likelihood of danger to public health could not easily arise even in absence of any opinion of expert, report of any laboratory or statements of some witnesses to indicate that the alleged activity of bootlegging was likely to cause danger to health of a large section of people in an area. Relying upon recent judgment of the Supreme Court in District Collector, v. V.Laxmanna [AIR 2005 SC 2802], it was pointed out that, in the facts of that case, sale of arrack was prohibited in the State of Andhra Pradesh and it was argued that it was sufficient if detaining authority were satisfied that detenu was indulging in manufacture, transport or sale of arrack and there was no need for him to come to the SCA/892/2007 13/34 JUDGMENT conclusion that such arrack was dangerous to public health. Rejecting that argument, the Supreme Court held that, if the detention was on the ground that the detenu was 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 was dangerous to public health, then under the Act, it became an activity prejudicial to the maintenance of public order. Then it became necessary for the detaining authority to be satisfied on material available to him that the arrack dealt with by the detenu was an arrack which was dangerous to public health to attract the provisions of the Act. Therefore, while holding that dealing with arrack which was dangerous to public health would become an act prejudicial to the maintenance of public order attracting the provisions of the Act, it was also held that it was obligatory for the detaining authority to provide the material on which it had based its conclusion on this point. 5. Learned A.G.P. Mr.Dipen Desai submitted that the activity of sale, storage or transportation of illicit liquor or IMFL, in SCA/892/2007 14/34 JUDGMENT violation of the provisions of the Prohibition Act, was required to be deemed to be likely to adversely affect public health and no evidence or material was required to arrive at the subjective satisfaction about likelihood of public health being adversely affected by such activity of bootlegging. Relying upon Article 47 of the Constitution, he pointed out that it was one of the directive principles, fundamental in the governance of the country, to bring about prohibition of consumption, except for medicinal purpose, of intoxicating drinks and of drugs which are injuries to health. He relied upon Division Bench judgment of this Court in Popat Mohan Vaghari vs. State of Gujarat [1989 (1) GLH 551] for the following observations made therein: "5. .....The activity of storing liquor on large scale and selling the same through liquor dens in public alone would be sufficient to adversely affect public order. One has to wink his eyes just for a while and imagine his own mother, wife, sister or daughter passing through public street where liquor is being sold in public and consumed openly. After imagining such a situation, question has to be put - Will there not be danger or alarm or feeling of insecurity among the general public or any section thereof on account of such activity? Law cannot be interpreted and implemented by shutting one's own eyes to the hard realities of life which exist beyond the air-conditioned chambers of bungalows and offices. If rule of law has to succeed, it has to run closer to the rule of life. It SCA/892/2007 15/34 JUDGMENT has got to be nearer to life and not away from life. In the localities inhabited by poor and downtrodden people, such activities of storing and selling liquor in public are normally being carried on. By sale of liquor in public in such localities, normal life of people will be disturbed.......But in view of aforesaid decisions of this High Court in the case of Rajendrakumar (supra) and particularly in view of the explanation to section 3 (4) of PASA, it is not permissible to take such a detached and disintegrated view of the matter. Explanation to section 3 (4) provides that public order shall be deemed to have been affected adversely inter alia if any of the activities of any person referred to in the sub-section directly or indirectly is causing or is 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 public health." 5.1 Another Division Bench of this Court has also held in Chandulal Jayswal v. Commissioner of Police [1990 (1) GLH 148] that: "28. It is, therefore, clear that if there is any activity of bootlegging which is prejudicial to the maintenance of public order within the enlarged meaning of sub- section (4) of section 3 of the Act, that would be a material on the basis of which subjective satisfaction can be arrived at." 5.2 Recent judgment of the Supreme Court in State of Maharashtra vs. Nagpur Distillers, Nagpur [AIR 2006 SC 1987] was relied upon for the SCA/892/2007 16/34 JUDGMENT following observations: "9. .......This factual distinction apart, we have to keep in mind that the right to trade in liquor is only a privilege farmed out by the State. Article 47 of the Constitution of India clearly casts a duty on the State at least to reduce the consumption of liquor in the State gradually leading to prohibition itself. It appears to be right to point out that the time has come for the States and the Union Government to seriously think of taking steps to achieve the goal set by Article 47 of the Constitution of India. It is a notorious fact, of which we can take judicial notice, that more and more of the younger generation in this country is getting addicted to liquor. It has not only become a fashion to consume it but it has also become an obsession with very many. Surely, we do not need an indolent nation. Why the State in the face of Article 47 of the Constitution of India should encourage, that too practically unrestrictedly, the trade in liquor is something that it is difficult to appreciate. The only excuse for the State for not following the mandate of Article 47 of the Constitution of India is that huge revenue is generated by this trade and such revenue is being used for meeting the financial needs of the State. What is more relevant here is to notice that the monopoly in the trade is with the State and it is only a privilege that a licensee has in the matter of manufacturing and vending liquor." (underline added) 5.3 And, in Ashok Lanka v. Rishi Dikshit and Others [(2006) 9 SCC 90], it is observed under the caption, Regulation of liquor vis-a-vis SCA/892/2007 17/34 JUDGMENT public health: "30. In common parlance, public health tends to refer only to aspects of medical care and prevention of disease. However, a true interpretation of the term "public health" will include not only this traditional notion but several other aspects that promote healthy living." "31. .... .... ... "32. The relationships among medicine, public health, ethics and human rights are now evolving rapidly, in response to a series of events, experiences and struggles. In general people equate medical care with health, but the vast majority of research into the health of populations identifies so-called "societal factors" as the major determinants of health status. Public health, although starting as a social movement, has at least in recent years, responded relatively little to this profound knowledge about the dominant impact of society on health, such as behaviour like excess alcohol......" "36. Prohibition of liquor was, thus, inserted as part of public health......." (underline added) 5.4 Judgment of the Supreme Court in Kanuji Zala v. State of Gujarat [1999 (2) GLH 415] was relied upon for the proposition that: "5. What is required to be considered in such cases is whether there was credible material before the Detaining Authority on the basis of which a reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defined by the Act. It is also well settled that whether the material was sufficient or not is not for the courts to decide by SCA/892/2007 18/34 JUDGMENT applying an objective test as it is a matter of subjective satisfaction of the Detaining Authority." In the facts of that case, the Detaining Authority had specifically mentioned in the grounds that the activity of the detenu was likely to