Jayantibhai Chopaji Thakore vs State of Gujarat and Others

Akil Kureshi, J.—Petitioner is ordered to be kept on preventive detention by an order dated 23rd July, 2010 passed by the Police Commissioner, Ahmedabad, in exercise of powers u/s 3(1) of Prevention of Antisocial Activities Act (for short ''PASA''). This order was based on the satisfaction of the Authority that it is necessary to keep him under preventive detention to prevent him from committing acts prejudicial to public order.

Vide communication dated 23.7.2010, grounds of such detention have been communicated to the Petitioner which records that the Petitioner has been involved in one case of offence u/s 66B and 66E and other provisions of Bombay Police Act for which FIR was lodged on 14.7.2010. It is stated that investigation in such complaint is going on. Other than the above alleged involvement of the Petitioner in one case of bootlegging, even as per the grounds of detention, there are no other acts of any criminal nature alleged against the Petitioner. The grounds thus record that the Petitioner is a bootlegger within the meaning of Section 2(b) of PASA. It is recorded that though Petitioner was involved in similar other cases also, the same have not been recorded. Grounds further indicate that if such activity of purchasing and selling of illicit liquor is not controlled, it would result into sell of liquor of inferior quality which may be poisonous and harmful to the people drinking it.

Counsel for the Petitioner submitted that for an isolated act of selling liquor that too only at the stage of complaint, the order of preventive detention could not have been passed. He submitted that there was no basis to permit the authorities to arrive at satisfaction that detention of the Petitioner was necessary. Reliance was placed in the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat and Ors. reported in 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.

Counsel also relied on 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.

From the record, I find that admittedly, the Petitioner was involved in only one case of selling illicit liquor. Except for recording of said FIR, no other cases are registered against the Petitioner. He is not found to be involved in any other criminal activities so far. Judgments referred above would therefore cover his case.

In view of the above, I am of the opinion that order of detention is bad in law. Petitioner is ordered to be released forthwith if not required in any other criminal case. Petition is allowed. Rule made absolute accordingly.