SCA/739320/2008 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7393 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 ? ========================================================= RATANBEN W/O KANAYALAL KISHN NETLEKAR Versus STATE OF GUJARAT & OTHERS ========================================================= Appearance : MR ARVIND K THAKUR for the Petitioner MR SATYAM CHHAYA, AGP for the Respondents ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 12/09/2008 ORAL JUDGMENT 1. This petition is directed against the order of detention dated 26th February, 2008 passed by the SCA/739320/2008 2/10 JUDGMENT respondent No.2 – detaining authority under the provisions of sub section (2) of section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA Act), whereby the petitioner has been detained as a bootlegger. 2. Heard Mr. A.K. Thakur, learned advocate for the petitioner and Mr. Satyam Chhaya, learned Assistant Government Pleader appearing on behalf of the respondent authorities. 3. The learned advocate for the petitioner has assailed the order of detention on various grounds. It is submitted that the impugned order does not satisfy the requirements for invoking the provisions of section 3 of the Act inasmuch as there is nothing in the order to indicate as to how the activities carried out by the petitioner are in any manner prejudicial to the maintenance of public order. It is submitted that a perusal of the order of detention does not indicate as to how the detaining authority has come to the substantive satisfaction that the activities of the petitioner are prejudicial to the SCA/739320/2008 3/10 JUDGMENT maintenance of public order. It is pointed out that there are no statements of any independent witness to indicate any breach of public order. 4. It is further submitted that the petitioner has not been supplied with a copy of the FSL report in respect of the last offence. In the circumstances, on account of non-supply of vital documents, the order of detention has been vitiated. In support of his submission, the learned advocate for the petitioner has placed reliance upon a decision of this Court in the case of Kiritkumar Chimanlal Kundalia v. Union of India, AIR 1981 SC 1621. Attention is drawn to the report of the FSL to point out that the report does not indicate that the liquor seized was injurious to health. In the circumstances, the satisfaction recorded by the detaining authority that the activities of the petitioner were prejudicial to the maintenance of public health are not substantiated. It is accordingly submitted that the impugned order passed by the detaining authority suffers from the vise of non application of mind and is accordingly required to be quashed by this Court. SCA/739320/2008 4/10 JUDGMENT 5. On the other hand, Mr. Satyam Chhaya, learned Assistant Government Pleader has opposed the present petition. It is submitted that the fact that the petitioner is involved in bootlegging activities would itself indicate that the petitioner is carrying out activities which are prejudicial to the maintenance of public health. Strong reliance is placed upon a decision of this Court in the case of Salam Abdul Hanifshaibhai Through Wife Hajrabibi Salam v. (The) District Magistrate and Ors., 2007(3) GLH 131, to submit that there was no requirement of any additional material in the form of expert's opinion or statements of witnesses to assume that illegal supply of liquor was likely to cause damage to public health and that such activities of any person would be likely to cause widespread damage to public health and thereby, adversely affect the maintenance of public order. It was accordingly submitted that the very fact that the petitioner was indulging in bootlegging activities would lead to an inference that she was carrying out activities which are likely to cause damage to public health. It is SCA/739320/2008 5/10 JUDGMENT accordingly submitted that the detaining authority has duly applied his mind to the material on record and has recorded satisfaction that the petitioner is required to be detained under the provisions of section 3 of the Act. That this Court in exercise of powers under Article 226 of the Constitution of India would not substitute its opinion in place of the subjective satisfaction arrived at by the detaining authority. As regards the non-supply of the documents as claimed by the petitioner, attention is drawn to the contents of the affidavit-in-reply filed by the detaining authority, to submit that all relevant documents which have been referred to and relied upon by the detaining authority has been supplied to the petitioner. It is, accordingly, submitted that the order passed by the detaining authority is in consonance with the provisions of law and does not call for any interference by this Court. 6. As can be seen from the impugned order passed by the detaining authority, the detaining authority has recorded the offences registered against the petitioner, which are four in number and all of them SCA/739320/2008 6/10 JUDGMENT pertain to prohibition offences. In the third paragraph of his order, the detaining authority has referred to the statements and documents on the basis of which he has arrived at the substantive satisfaction. In the 4th paragraph, the detaining authority has recorded that on the basis of the said documents, it is clear that the petitioner possesses a criminal mind. That country liquor is prejudicial to the health of the general public, despite which the petitioner is carrying on illegal anti-social activities and hence, is a “bootlegger” as defined under section 2(b) of the Act. That the petitioner is illegally manufacturing and selling country liquor and is known as such in the area, where she resides. In the penultimate paragraph of the order, the detaining authority has stated that upon consideration of the facts in toto, he is fully justified that the petitioner is a bootlegger. That country liquor is injurious to the health of the general public and that the petitioner is involved in the activities of manufacture and sale of country liquor. That the illegal activities carried out by the petitioner are prejudicial to public order and SCA/739320/2008 7/10 JUDGMENT public health. In the circumstances, it is necessary to detain the petitioner. 7. As is apparent from a perusal of the findings recorded by the detaining authority, there is nothing to show as to how the detaining authority has come to the conclusion that the activities of the petitioner are injurious to public health. Except for a bare statement that the sale of liquor is injurious to public health, there is nothing to substantiate as to how the activities carried out by the petitioner are injurious to public health. The Supreme Court in the case of Piyush Kantilal Mehta v. Commissioner ofr Police, Ahmedabad city and another, 1989 (Supplementary) 1 SCC 322 has held that 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 a bootlegger affect adversely the maintenance of public order. The learned Assistant Government Pleader has placed reliance upon the SCA/739320/2008 8/10 JUDGMENT explanation to section 3 of the Act, to submit that even activities which are prejudicial to public health would fall within the purview of public order. However, to invoke the said provision, the detaining authority has to come to the conclusion that the activities of the detenu are likely to cause widespread damage to public order. On the basis of the findings recorded in the impugned order, there is nothing to show that the alleged activities of the petitioner are causing or are likely to cause widespread damage to public health. In the case of Ashok Balabhai Makwana v. State of Gujarat rendered on 22nd August, 2000 in LPA No.223 of 2000 on which reliance has been placed upon by the learned advocate for the petitioner, a Division Bench of this Court held that the detaining authority after narrating the particulars of the criminal cases, 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 SCA/739320/2008 9/10 JUDGMENT disturbed. It was further held that the litmus test to find out as to whether it is a case of breach of public order or breach of public health, credible material has to be there. On the facts of the said case, the Court had found that the only material which remains is the registered criminal case 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 public order and public health. The Court found that necessary material in this regard is totally wanting in the body of the detention order itself. The Court observed that 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. The Court found that after giving particulars of criminal cases, the detaining authority by including certain allegations, not SCA/739320/2008 10/10 JUDGMENT supported by any credible material has simply observed that the appellant's activities were an obstacle to public health and public order. 7. The aforesaid decision of the Division Bench would apply on all fours to the facts of the present case. In the circumstances, the subjective satisfaction recorded by the detaining authority being based on no evidence, stands vitiated, hence the impugned order of detention cannot be sustained. 8. In the result, the petition succeeds and is accordingly allowed. The impugned order dated 26th February, 2008 passed by the detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute. Direct service is permitted. (HARSHA DEVANI, J.) shekhar/-