SCA/8190/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8190 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 ? ========================================= = HARSUKH @ VEERO HIRABHAI MALMADI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================= Appearance : MR SIKANDER SAIYED for Petitioner(s) : 1, MR HEMANT MAKWANA, 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/8190/2008 2/10 JUDGMENT dated 13th March, 2008 made by the District Magistrate, Junagadh 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 health and public order. The order was executed on the same day. The petitioner is thus detained under the Act since 13th March, 2008. 2. Rule was issued on the petition on 17th June, 2008, however, neither the detaining authority nor the State Government, have filed any counter to the petition. 3. Heard Mr.Sikandar Saiyed, learned advocate for the petitioner and Mr.Hemant Makwana, 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. It is submitted that the detaining authority has proceeded on assumption and presumption by presuming that the activities of selling liquor per se amounts to activities which are prejudicial to the maintenance of public health and public health. SCA/8190/2008 3/10 JUDGMENT 5. In the impugned detention order the detaining authority has recorded that the petitioner has formed a gang consisting of three four persons and that he along with his gang was importing foreign liquor on a large scale and selling the same in Veraval and other neighbouring areas. The detaining authority has thereafter referred to the solitary offence registered against the petitioner on and 15.2.08 under sections 66(b), 65(a)(e) and 116(2)(b) of the Bombay Prohibition Act, 1949. The detaining authority has thereafter recorded that the statement of the petitioner had been recorded in connection with the said offence wherein he had stated that he had obtained foreign liquor from one Naranbhai Kataria and had stored the same in his yard. Out of the said stock he had sold 6 crates to one Meghji Kharva which had been seized during the raid made by the police. That he had secretly sold the rest of the stock in piecemeal. That on the basis of the aforesaid facts it is proved that the petitioner is importing and selling foreign liquor on a large scale. It is further observed that the petitioner is carrying on the unlawful activity of selling foreign liquor and had made it his main business and his main source of income. It is further observed that on the basis of the offences registered against the petitioner, it is apparent that the petitioner was flagrantly indulging in the illegal activity of importing foreign liquor and selling the same, thereby, committing offences punishable under the Bombay Prohibition Act, 1949. That in connection with the said offences, the petitioner has been granted bail and there is all possibility that the petitioner would carry on his unlawful activities. That in view of the unlawful activities SCA/8190/2008 4/10 JUDGMENT involving liquor, the youth of the community and the poor, illiterate rural public get addicted to consuming liquor and are pushed towards economic and physical ruin. That on account of liquor there are hooch tragedies. After consuming liquor, people lose control over their senses and harass the public due to which the public order is affected. Thus, his illegal activities of selling liquor are hindrances to the public as well as to the maintenance of public order. That in connection with the offences registered against him, he has been enlarged on bail. It would take considerable time to get the bail cancelled. That while on bail, the petitioner by continuing to carry on his illegal activity of hoarding liquor and selling the same was an obstacle to the maintenance of public order. The detaining authority has thereafter expressed the view that taking steps to obtain a bond from the petitioner under section 93 of the Prohibition Act was not sufficient and it would take time to take action to extern him. Thus, with a view to immediately prevent his antisocial activities as well as activities which are in the nature of obstacles to the maintenance of public order it does not appear appropriate to take action for detaining him under any other law. 6. The detaining authority has also recorded that when the petitioner was arrested in connection with the aforesaid offence; he had admitted that he the liquor that was seized belong to him and that it was part of the 185 crates, and that only six crates were seized, whereas the rest were piecemeal sold by the petitioner. Thus he was SCA/8190/2008 5/10 JUDGMENT satisfied that the petitioner was bringing foreign liquor in large quantities from other States and was hoarding and selling the same and was giving cooperation to persons carrying on similar unlawful activities. That as his aforesaid activities were obstacles in the maintenance of public order, it was necessary to detain the petitioner as it was not possible to immediately prevent him from carrying on his illegal activities under any other law, hence as a last resort he was being detained in exercise of powers under section 3(1) of the PASA Act as a ‘bootlegger’ under section 2(b) of the said Act. On the aforesaid facts, the detaining authority has arrived at the subjective satisfaction that the petitioner is a bootlegger as defined under section 2(b) of the PASA Act and that his activities are prejudicial to the maintenance of public health and public order. 7. This Court has perused the record of the case and has considered the submissions advanced by the learned Advocates for the parties. A perusal of the impugned order of detention and the record of the case shows that there is absolutely no material on record on the basis of which the detaining authority could have arrived at the finding that the activities of the petitioner are prejudicial to the maintenance of public health and public order. Though findings are recorded that the petitioner is carrying on large scale activities of selling liquor which has an adverse effect on the community, there is no material on record to back such findings. The impugned order of detention is based upon assumptions and SCA/8190/2008 6/10 JUDGMENT presumptions inasmuch as, the detaining authority has assumed that per se the activities of the petitioner would be injurious to the public health and public order. If the reason adopted by the detaining authority is taken to its logical end, it would amount to stating that in other States where there is no prohibition policy, the State itself is permitting citizens to carry on activities which are prejudicial to the maintenance of public order and public health. Such a construction, therefore, is illogical and not in consonance with the intention of the legislature, while framing the PASA Act. 8. 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 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 SCA/8190/2008 7/10 JUDGMENT 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.” 9. 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, 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 SCA/8190/2008 8/10 JUDGMENT 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 of arriving at the satisfaction with regard to breach of public order or public health.” 10.In the facts of the present case, as noted hereinabove, the only material against the petitioner is the two criminal SCA/8190/2008 9/10 JUDGMENT cases registered against the petitioner, which by itself cannot be said to be a material for the purpose of holding that the activities of the petitioner had become a threat to the public order and public health. The offences registered against the petitioner cannot be said to have created any feeling of insecurity or panic or terror amount the members of the public in the area in question giving rise to the question of maintenance of public order. As regards, maintenance of public health, mere sale of liquor cannot be said to be prejudicial to the maintenance of public health, unless there is specific material on record to show that the liquor was not fit for human consumption or was otherwise injurious to health. According to the detaining authority, per se, the activity of bootlegging is prejudicial to the maintenance of public health and public order, which is contrary to the law laid down by the Supreme Court in the decision cited hereinabove. In the circumstances, the subjective satisfaction recorded by the detaining authority being based on no material stands vitiated and as such the impugned 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 District Magistrate, Junagadh, is hereby quashed and set aside and the detenu – Shri Hasmukh alias Viro Hirabhai Malmadi, 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. SCA/8190/2008 10/10 JUDGMENT [HARSHA DEVANI, J.] parmar*