KIRIT BACHUBHAI PATEL THRO JAYESH BACHUBHAI PATEL-BROTHER Vs. COMMISSIONER OF POLICE
LAWS(GJH)-2008-4-218
HIGH COURT OF GUJARAT
Decided on April 29,2008

Kirit Bachubhai Patel Thro Jayesh Bachubhai Patel -Brother Appellant
VERSUS
COMMISSIONER OF POLICE Respondents

JUDGEMENT

- (1.) HEARD learned advocate appearing on behalf of the detenue and learned AGP for the respondents.
(2.) THE brother of detenue has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting the impugned order of detention dated 10.7.2007 passed by the respondent No.1 -Police Commissioner, Vadodara 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') the detenue has been detained as a 'Bootlegger".
(3.) FROM the grounds of detention, it appears that one offence has been registered against the detenue at Navapura Police Station being CR No.182/07 under Sections 66B, 65(E), 81, 84 and 116(1) of the Bombay Prohibition Act wherein it is alleged that the detenue is engaged in the illegal activity of selling of English liquor of different brands. In all a total quantity of value of Rs.69,600/ - of Liquor has been seized from the possession of the detenue. On the basis of the registration of these cases, the detaining authority held that the present detenue was carrying on activities of selling liquor 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 him from carrying on further illegal activities, i.e. selling of liquor. The detaining authority has placed reliance on the above referred offences and statements of unnamed witnesses. In the opinion of this Court, the activities of the detenue 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 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. The affidavit -in -reply filed on behalf of the detaining authority is taken on record. Except few statements of anonymous witnesses, there is no material on record which shows that the detenue is carrying on illegal activity of selling English 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 orders are passed on the basis of such statements of the witnesses fall under the maintenance of 'Law and Order' and not 'Public Order'.;


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