SUDESH BASRU FULCHAND TAMAICHE 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 13. 2. 2008 passed by the respondent No. 2-Commissioner of Police, Ahmedabad City, 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 petitioner has been detained as a "sbootlegger"". In pursuance of the said impugned order, the petitioner is detained in Rajpipla Sub-Jail, who has been later on shifted to Sub-Jail, Palanpur.

(3.) FROM the grounds of detention, it appears that four offences being Prohibition CR Nos. 5178 of 2007, 5117 of 2007, 5319 of 2007 and 5034 of 2007 have been registered against the detenu. Except the first offence registered at Sardarnagar Police Station, the rest of the offences are registered at Meghaninagar Police Station, under the provisions of Sections 66b, 65e and 81 under the Bombay Prohibition Act, wherein a quantity of total 111 ltrs. of country made liquor were found from the possession of the detenue. On the basis of registration of these cases, the detaining authority held that the present detenue was carrying on activities of selling country made 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 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.