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Judgment
Umesh A. Trivedi, J
[1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner - detenue challenges the order of preventive detention passed by respondent No.2 - District Magistrate, Ahmedabad City dated 13.02.2020 against him in exercise of powers under Sub- Section (2) of Section 3 of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as "the Act") whereby the petitioner has been detained as a 'bootlegger', which came to be executed upon him on the same day.
[2.0] Shri H.B. Champavat, learned advocate for the petitioner - detenue submitted that for branding the petitioner - detenue as 'bootlegger' as defined under Section 2(b) of the Act, the detaining authority has relied on one offence being, C.R.No.335 of 2019 registered with Bavla Police Station for the offence punishable under Sections 65-E, 81, 83, 116-B and 98(2) of the Gujarat Prohibition Act, 1949. He has further submitted that except for the solitary offence registered against the petitioner and the record of the said case, there was no other material before the detaining authority. It is further submitted that merely because an offence has been registered against the petitioner under the Gujarat Prohibition Act, without anything more, it cannot be said that the activities of the petitioner are prejudicial to the maintenance of public order. He has further submitted that the co- accused in aforesaid offence was also detained vide order dated 13.02.2020. The co-detenue preferred Special Civil Application No.7608 of 2020 challenging the order of preventive detention passed against him, which came to be allowed and the coordinate Bench of this Court has quashed the detention order vide order dated 22.07.2020. He has further submitted that the reasons and grounds of detention in the case of present detenue as also the co-detenue are more or less similar, and therefore, he has submitted that even on the ground of parity also the order impugned is required to be quashed and set aside.
[2.1] Referring to the impugned order, it is pointed out that subjective satisfaction of the detaining authority is based upon the fact that the petitioner is 'Bootlegger' as defined under Section 2(b) of the Act, to submit that the same is contrary to the law laid down by the Supreme Court in the case of Piyush Kantial Mehta V/s. Commissioner of Police, Ahmedabad, AIR 1989 SC 491. It is submitted that for the offence under the Prohibition Act, the petitioner may be punished, as provided under the said Act, but such acts constituting the offence under the Prohibition Act cannot be said to have affected even the tempo of life of the community. It is urged that mere mention of allegations unless they are supported by any material cannot be said to be material germane for the purpose of arriving at the satisfaction with regard to breach of public order. It is accordingly submitted that the subjective satisfaction recorded by the detaining authority being based on no material stands vitiated and as such, the impugned order of detention deserves to be set aside.
[3.0] As against that, Shri Utkarsh Sharma, learned Assistant Government Pleader, for the respondent - State supported the order of detention passed by the authority and submitted that after considering the material placed before the detaining authority and after having subjectively being satisfied the order of detention came to be passed. It is further submitted by learned Assistant Government Pleader that since the order passed by the detaining authority in the case of co-detenue was based on the material placed before it and having been subjectively satisfied, even if that detention order is quashed, the present detenue cannot seek parity, and therefore, he has requested to reject the petition.
[3.1] In Piyush Kantilal Mehta (Supra), the Supreme Court was considering the legality and validity of detention passed by the Commissioner of Police, Ahmedabad city under sub-section (2) of Section 3 of the Act. The order of detention was based on two offences registered against the detenue under the Bombay Prohibition Act, 1949 as well as statements of 5 anonymous witnesses residing in the areas where the detenue was alleged to be carrying on the illegal activities. The Supreme Court referred to the provisions of Section 2(b) which defines 'Bootlegger' and Section 3, which provides for making orders detaining certain persons and held thus:-
"12. Under sub-section (1) of S.3, an order of detention of a person can be passed with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.Sub-section (4) of S.3 contains a deeming provision. Under sub-Section (4), a bootlegger or a dangerous person or a drug offender shall be deemed to be acting in a manner prejudicial to the maintenance of public order when the activities of such a person affect adversely or are likely to affect adversely the maintenance of public order. In other words, although sub-section (4) contains a deeming provision, such deeming provision will not be attracted unless the activities of the person affect adversely or are likely to affect adversely the maintenance of public order."
(Emphasis supplied)
The Supreme Court referred to the offence registered against the said detenue and observed thus:
"There can be no doubt that the offence alleged to have been committed by the petitioner have no bearing on the question of maintenance of public order".
[4.0] Adverting to the facts of the present case, perusal of the impugned order of detention, it reflects that the petitioner is of criminal mind. The petitioner - detenue is alleged to be dealing with Indian made Foreign liquor with the help of his accomplices. It is further alleged that the detenue with the help of his accomplices brings Indian made Foreign liquor into Bavla Police Station area and distributes the same in small-big vehicles into the Ahmedabad (Rural) area, thereby transporting, storing and selling commits illegal activities. The only ground on which the order of detention has been passed is that the petitioner is 'Bootlegger' within the meaning of Section 2(b) of the Act. There is no credible material on record to show that the activities of the petitioner had disturbed even the tempo of public life. Therefore, the order of preventive detention passed against the petitioner by the detaining authority is vitiated and requires to be set aside.
[4.1] Since the order of preventive detention is required to be quashed and set aside on the ground that the preventive detention order in the case of co-accused / co- detenue having been quashed by this Court, who is similarly situated with the present detenue in terms of cases filed against both of them, it would not be necessary to go into the grounds of detention in detail. More or less, the reasons and grounds of detention are same in respect of the present detenue as also the co-accused / co-detenue. It would be profitable to refer to a decision of the Supreme Court in the case if Alpesh Navinchandra Shah Vs. State of Maharashtra and Ors. reported in AIR 2007 SC (Supp.) 570 wherein in the facts of the said case, the petitioner's brother on identical facts had already been released on the ground that there was no sufficient cause for detention of the detenue under Section 3(1) of the COFEPOSA Act. The government had, accordingly, revoked the detention order issued against him considering the report of the Advisory Board and the material on record and in exercise of the powers conferred under Section 8(f) of the COFEPOSA Act, and directed that the petitioner's brother be released forthwith. The Court was of the opinion that the petitioner therein who was also similarly placed, was entitled to the same treatment.
[4.2] In every respect so far as registered case as also the material in support of the same were similar in respect of co-detenue as well. When this Court while considering the case of the co-detenue quashed the order of preventive detention passed against him, the present detenue is entitled for the same treatment in view of decision rendered by the Supreme Court in the case of Alpesh Navinchandra Shah (Supra). The coordinate Bench of this Court while quashing the order of preventive detention in the case of co-detenue considered the judgments of the Supreme Court and came to the conclusion that simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the PASA Act and no other relevant and cogent material exists for invoking power under Section 3(2) of the PASA Act.
[5.0] In view thereof, this Special Civil Application is allowed. The impugned order of detention dated 13.02.2019 bearing No.DC/PASA/GROUNDS/2(b)/07/2020 passed by respondent no.2 - District Magistrate, Ahmedabad City is hereby quashed and set aside. The petitioner - detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute.