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Judgment
Ilesh J. Vora, J
The petitioner herein namely Mahebubbhai Husenbhai Rangrej came to be preventively detained vide the detention order dated 08.01.2024 passed by the Police Commissioner, Ahmedabad, as a “common gaming housekeeper” as defined under Section 2(bb) of the Gujarat Prevention of Anti-social Activities Act, 1985 (herein after referred as ‘the Act of 1985).
By way of this petition, the petitioner has challenged the legality and validity of the aforesaid order.
This Court has heard learned counsel Mr. O.I. Pathan and Mr. LB Dabhi, learned AGP for the respondent State.
Learned advocate for the detenue submits that the grounds of detention has no nexus to the “public order”, but is a purely a matter of law and order, as registration of the offence cannot be said to have either affected adversely or likely to affect adverse the maintenance of public order as contemplated under the explanation sub-section (4) of Section 3 of the Act, 1985 and therefore, where the offences alleged to have been committed by the detunue have no bearing on the question of maintenance of public order and his activities could be said to be a prejudicial only to the maintenance of law and order and not prejudicial to the maintenance of public order.
On the other hand, learned State Counsel opposing the application contended that, the detenue is habitual offender and his activities affected at the society at large. In such set of circumstances, the Detaining Authority, considering the antecedents and past activities of the detenue, has passed the impugned order with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad.
Having considered the facts as well as the submissions made by the respective parties, the issue arises as to whether the order of detention passed by the Detaining Authority in exercise of his powers under the provisions of the Act of 1985 is sustainable in law?
The order impugned was executed upon the applicant and presently he is in Vadodara Central Jail. In the grounds of detention, a reference of two criminal cases registered against the applicant under Sections 4 and 5 of the Prevention of Gambling Act registered with Shaherkotda Police Station on 03.09.2023 and 09.12.2023 was made and further it is alleged that, the activities of the detenue as a “common gambling housekeeper” affects adversely or are likely to affect adversely the maintenance of public order as explained under Section 3 of the Act of 1985. Admittedly, in all the said offences, the applicant was granted bail.
The term ‘Common Gaming Housekeeper’ defined under Section 2(bb) reads as under:
"common gaming house keeper" means a person who, having bean convicted of an offence punishable under section 4 of the Bombay Prevention of Gambling Act, 1887, within a period of three years from the date of such conviction either by himself or as a member or leader of a gang habitually commits or attempts to commit or abets me commission of an offence punishable under that section;
After careful consideration of the material, we are of the considered view that, there is no material placed before the authority to establish that the applicant was convicted of an offence punishable under Section 4 of the Gambling Act within a period of 3 years from the date of such conviction either himself or as a member or leader of game habitually commits or attempts to commit or abate the commission of an offence under the said section. Thus, therefore, we are of the firm view that, the activities as alleged would not fall under the definition of ‘common gaming housekeeper’. In such circumstances, the authority has wrongly arrived at the subjective satisfaction that the activities of the detenue could be termed to be acting in a manner ‘prejudicial to the maintenance of public order’.
For the reasons recorded, we are of the considered opinion that, the material on record are not sufficient for holding that the alleged activities of the detenue have either affected adversely or likely to affect adversely the maintenance of public order and therefore, the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law.
Accordingly, this petition stands allowed. The order impugned dated 08.01.2024 passed by the respondent authority is hereby quashed. We direct the detenue to be set at liberty forthwith, if he is not required in any other case. Rule is made absolute accordingly. Direct service permitted.