Abdul Samad Abdulhamid Shaikh vs State of Gujarat and Others

Akil Kureshi, J.—Petitioner is ordered to be kept under preventive detention, by an order dated 29.10.2010, passed by the Police

Commissioner, Surat, in exercise of powers u/s 3(1) of Prevention of Antisocial Activities Act (for short ''PASA'').

Grounds of detention indicate that against the Petitioner, there are three cases, for the offences punishable under Sections-66(1)(b), 65E, etc. of

the Bombay Prohibition Act, are registered on 08.07.2009, 09.07.2009 and 08.10.2010, respectively. It is, further, recorded that to prevent the

Petitioner from indulging in similar, antisocial activities, it is necessary to place him under preventive detention.

Learned Counsel for the Petitioner, however, submitted that only for involvement in prohibition cases, the Petitioner cannot be said to be

antisocial element. His detention is, therefore, illegal. Reliance, in this regard, was placed on a decision in the case of Ashokbhai Jivraj @ Jivabhai

Solanki v. Police Commissioner, Surat and Ors. 2001 (1) GLH 393; wherein Division Bench of the High Court made following observations.

So far as the cases against the detenu are concerned, they have already been registered. They were against persons mentioned therein which is

stated in the grounds of detention by the detaining authority. Regarding two statements, having taken into account the law laid down by the

Supreme Court in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, and reiterated from time to time including the decisions referred to by

us hereinabove, the case falls under the maintenance of ""law and order"" and not ""public order"". The subjective satisfaction arrived at by the

detaining authority, therefore, cannot be said to be legal, valid and in accordance with law. Since in the facts and circumstances, an order of

detention could have been passed by the detaining authority for maintenance of ""public order"", the order deserves to be quashed and is hereby set

aside. The detenu is ordered to be set at liberty forthwith unless required in any other case. Appeal is accordingly allowed. No order as to costs.

Learned Counsel also relied on an unreported decision of learned single Judge, dated 25.10.2005 passed in Special Civil Application No.

18901 of 2005; wherein, it was held and observed as under:

In the present case the reliance is only placed upon the solitary offence, without having any basis and dehors the relevant and credible materials

to arrive at a conclusion about disturbance of public order by the prejudicial activities of the detenue and therefore, powers exercised by the

authority while passing the order of detention is the result of non-application and the order of detention requires to be quashed and set aside.

For the reasons recorded hereinabove, the order of detention dated 22.06.2005 passed by the Respondent No. 2, is hereby quashed and set

aside. The detenue Jyotiben Wd/o. Rameshbhai Morarbhai Koli Patel is ordered to be set at liberty forthwith if she is not required further in any

other case by any other authority.

Learned AGP opposed the petition contending that order of detention was based on subjective satisfaction of the authority.

I have perused the nature of involvement of the Petitioner in such prohibition cases. The Petitioner is stated to have found in possession of 26

bottles, 111 bottles and 21 bottles of liquor, on three occasions, respectively. Such involvement of the Petitioner may be an issue of ''Law and

Order'' situation, however, the same cannot be stated to be a threat to maintenance of ''Public Order'' or ''Public Safety''. Detaining the Petitioner,

on the ground that his freedom would pose a danger to maintenance of public order, therefore, cannot be accepted.

In view of the above, I am of the opinion that the order of detention is bad in law. The order of detention dated 29.10.2010, passed by the

Police Commissioner, Surat, is QUASHED. Petitioner is ordered to be released FORTHWITH, if NOT REQUIRED in connection with any

other criminal case. Rule is made absolute, accordingly. Direct service is permitted.