GOPSINGBHAI TERSINGBHAI RATHWA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD the learned advocate for the petitioner and the learned AGP for the respondents.

(2.) THE petitioner-detenue has preferred this petition, under Article 226 of the Constitution of India, for appropriate writ, order or direction for quashing and setting aside the impugned order dated 1. 8. 2007 passed by the respondent No. 2-the District Magistrate, Vadodara, in exercise of power under sub-section (2) of Section (3) of the Gujarat Prevention of Anti Social Activities Act, 1985 ("spasa Act"" for short) whereby the detenue has been detained as a "sbootlegger"". In pursuance of the said impugned order, the detenue is detained in Jamnagar District Jail, Jamnagar.

(3.) FROM the grounds of detention, it appears that only one offence being III-CR No. 35 of 2007 under the provisions of Sections 66 (1)B, 65a,e, 112 (2) and 81 under the Bombay Prohibition Act, was registered with Rangpur Police Station, wherein a quantity of total 1200 bottles of foreign beer (liquor) were found from the possession of the detenue. On the basis of registration of this case, the detaining authority held that the present detenue was carrying on activities of selling foreign beer which is harmful to the health of the public. It is held by the detaining authority that as the detenue is indulged in illegal activities, it is required to restrain the detenu from carrying out further illegal activities, i. e. selling of liquor. The detaining authority has placed reliance on the above registered offences and statements of unnamed witnesses. In the opinion of this Court, the activities of the detenue can, by no stretch of imagination, be said to be disturbing the "spublic order. "" It is seen from the grounds that a general statement that has been made by the detaining authority that consuming liquor is injurious to health. In fact, a perusal of the order passed by the detaining authority shows that the grounds which are mentioned in the order are in reference to the situation of "slaw and order"" and not "spublic order"". Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.