SHANTIBEN Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) THE petitioner-detenu has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside the order dated 7. 1. 2008 passed by respondent No. 1-Police Commissioner, Surat City, whereby, in exercise of power under sub-section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short, 'pasa Act') the petitioner has been detained as a bootlegger. In pursuance of the said impugned order, the petitioner is detained in jail. Heard the learned advocate for the petitioner and the learned AGP for the respondents. No affidavit-in-reply is filed by the learned AGP on behalf of the respondents controverting the averments made in the petition.

(2.) FROM the grounds of detention, it appears that three offences being CR. III. No. 823, 829 and 976 of 2007 under sections 66 (1)b and 65 (e) etc. under the Bombay Prohibition Act, were registered with Kapodra police station, wherein Indian made foreign liquor was found from the possession of the detenu. On the basis of registration of these cases, the detaining authority held that the present detenu was carrying on activities of selling country liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenu is indulged in illegal activities, it is required to restrain him 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 detenu can, by no stretch of reasoning, be said to be disturbing the public 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 'law and order' and not 'public order'. Therefore, on this ground, the subjective satisfaction of the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.

(3.) EXCEPT two statements of the anonymous witnesses, there is no material on record which shows that the petitioner-detenu is carrying out illegal activities of selling liquor which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat (2001 (1) GLH 393), having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this court held that the cases wherein the detention order are passed on the basis of the statements of such witnesses fall under the maintenance of "slaw and order"" and not "spublic order"".