Kalpesh Vinodchandra Bhavsar vs State of Gujarat and Others

Anant s. Dave, J.—Heard the learned Advocates appearing for the parties.

The petition is directed against the order of detention dated 23.8.2010 passed by Respondent No. 2, in exercise of powers conferred under Sub-Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short, ''PASA Act'') by detaining the detenu as a bootlegger as defined u/s 2(b) of the Act.

Learned advocate for the detenu restricted his argument to the extent of order of detention and submits that registration of FIR itself cannot lead to disturbance of even tempo of public life and therefore, the public order. The order of detention is assailed by the detenu on various grounds mentioned in the memo of the petition. However, learned Counsel for the detenu has focussed his arguments mainly on the ground that except one FIR registered under the Bombay Prohibition Act, there was no other material before the detaining authority whereby it could be inferred reasonably that the detenu is a ''bootlegger'' within the meaning of Section 2(b) of the Act and required to be detained as the detenu''s activities are prejudicial to the maintenance of public health and public order. In support of the above submission, learned Counsel for the detenu has placed reliance on relevant observations made by the Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and Another, and the judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram: M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent Appeal No. 223 of 2000 in Special Civil Application No. 554 of 2000 Ashok Balabhai Makwana v. State of Gujarat which would squarely help the detenu.

Learned advocate for the detenu further submits that no affidavit-in-reply is filed by the State Government.

In view of the above, subjective satisfaction of the detaining authority that antisocial activities carried out by the detenu are detrimental to public order stands vitiated and order of detention based on such satisfaction deserves to be quashed and set aside.

Learned Assistant Government Pleader submitted that registration of the complaint would go to show that the detenu had, in fact, indulged into such activities, which can be said to be disturbing the public health and public order. Learned Assistant Government Pleader further submitted that there was sufficient material before the detaining authority to pass the order of detention and no interference is called for by this Court in exercise of its power under Article 226 of the Constitution of India.

Having heard the rival submissions of the parties and perused the record of the case, I am of the view that a single complaint registered under the Bombay Prohibition Act alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order. The registration of FIR under Bombay Prohibition Act ipso facto does not lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. The activities of the detenu must, in the backdrop of the facts, reflect that such activities disturbed or likelihood of disturbing the tempo of normal life of society or general peace and tranquility or create a sense of alarm and insecurity in the locality. The impugned order suffers from vice of non-application of mind inasmuch as the case in which the detaining authority has placed reliance on the above registered offence and statements of unnamed witnesses. In the opinion of this Court, the activities of the detenu can, by no stretch of reasoning, be said to be disturbing the public order.

On careful perusal of the material available on record and the ratio laid down by the Apex Court in the case of Piyush Kantilal Mehta (supra) and the judgment and order dated 22.8.2000 of the Division Bench of this Court (Coram: M.R. Calla & R.R. Tripathi, JJ.), in Letters Patent Appeal No. 223 of 2000 in Special Civil Application No. 554 of 2000 Ashok Balabhai Makwana v. State of Gujarat, I am of the view that the activities of the detenu cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside.

In the result, the petition is allowed. The order of detention dated 23.8.2010 passed by the Respondent No. 2 is quashed and set aside. The detenu, is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.