Kiranbhai Maganbhai Patel vs Commissioner of Police and 2

Honourable Mr. Justice Z.K. Saiyed

By filing present petition the petitioner - detenu under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order of detention dated 16th July, 2011 passed by therespondent No.1 - Police Commissioner, AhmedabadCity, in exercise of power under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "PASA Act"). Thedetenue is branded as "bootlegger".

Heard the learned Advocate for the petitioner andlearned AGP for the respondents. No Affidavit inreply is filed by the respondents controverting theaverments made by the petitioner.

The petitioner came to be detained as "bootlegger"on his involvement in the offence being ProhibitionCR No. 5155 of 2011, registered with Odhav Police Station, Ahmedabad.

It has been submitted by the learned Counsel for the petitioner that it is a settled legal position that on registration of single solitary offence, 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 the order of detention.

I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the learned A.G.P.

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 - detenueis carrying out illegal activities of selling liquor which is harmful to the health of the public. In support of the above submission, learned Advocate for the detenue has placed reliance on the decision of the Hon''ble Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and Another, and the recent Judgment dated 28.3.2011passed by the Division Bench of this Court (Coram :S.J. Mukhopadhyay, CJ & J.B. Pardiwala, J.) in Letters Patent Appeal No. 2732 of 2010 in Special Civill Application No.9492 of 2010 (Artiben v/s Commissioner of Police) which would squarely help thedetenue.

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

In the result, this petition is allowed. The impugned order of detention dated 16th July, 2011passed by the Police Commissioner, Ahmedabad City, is hereby quashed and set aside. The detenu is orderedto be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly.

Direct service permitted.