Dineshbhai Bansibhai Dantaniya vs Commissioner of Police and Others

J.C. Upadhyaya, J.—The petitioner detenu filed the present petition under Article 226 of the Constitution of India, challenging his detention

pursuant to the detention order dated 16/07/2010, which was executed on 25/7/2010, passed by the respondent - Police Commissioner,

Ahmedabad City, by exercising the powers conferred under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act,

1985 (""PASA Act"", for short). The petitioner is branded as ""bootlegger"".

Heard Mr. RB Sharma, Ld. Advocate for the petitioner and Ms. CM Shah, learned AGP for the respondents. Affidavit-in-reply filed by the

respondent - Commissioner of Police, Ahmedabad City has been taken into consideration.

The petitioner came to be detained as ""bootlegger"" on his involvement in two offences arising under the Bombay Prohibition Act.

It has been submitted by the learned Counsel for the petitioner that it is a settled legal position that on registration of two offences, no order of

detention could have been passed, as petitioner - detenu cannot be branded as ""bootlegger"". It has been further submitted that the activities of the

petitioner cannot be said to be injurious to the public health or public order. It has been further submitted by the learned Counsel for the petitioner

that there is gross delay in passing the order of detention as well as there is gross delay in executing order of detention.

Per contra, Ms. CM Shah, learned AGP representing the respondents supported the detention order dated 16/07/2010 passed by respondent -

Commissioner of Police, Ahmedabad City and submitted that before passing the detention order, the detention authorities took into consideration

all the relevant papers and after subjective satisfaction, the detention order is passed and thus the detention order is legal and proper and no

interference in the said order is warranted and consequently the petition deserves dismissal.

I have gone through the grounds of detention and considered the submissions advanced on behalf of both the sides.

The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the petitioner. It is seen from the

grounds that a general statement 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.

Except the general statement, there is no material on record which shows that the petitioner - detenu is carrying on illegal activities of selling

liquor or is engaged in such activity, which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police

Commissioner, Surat reported in 2001 (1) GLH 393 , having considered the decision of the Hon''ble Apex Court in the case of Dr. Ram Manohar

Lohia Vs. State of Bihar and Others, this Court held that the cases wherein the detention order are passed on the basis of the statements of such

witness fall under the maintenance of ""law and order"" and not ""public Order"".

Applying the ratio of the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite

findings that there is threat to the ''public order'' and it is very clear that the present case would not fall within the category of threat to a public

order. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for

passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.

For the foregoing reasons, this petition is allowed. The impugned order of detention dated 16/07/2010 passed by the respondent -

Commissioner of Police, Ahmedabad City, is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in

any other case. Rule made absolute accordingly. DS permitted.