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Judgment
Umesh A. Trivedi, J
The petitioner, through his brother, has filed this petition under Article 226 of the Constitution of India challenging the order of preventive detention
passed by respondent No.2 herein dated 12.04.2019 in exercise of powers under Sub-Section (2) of Section 3 of the Gujarat Prevention of Anti Social
Activities Act, 1985 (herein after referred to as ‘the Act’) whereby the petitioner has been detained as bootlegger, bearing No.
MAG/PASA/VASHI/21/2019 which came to be executed on 16.04.2019 being illegal and violative of the fundamental rights of the petitioner.
While passing the order of detention, it is reflected from the grounds of detention that the petitioner in connivance with his associates was indulging
in anti social activities by transporting Indian made foreign liquor in Innova Car bearing registration No.GJ-03-CE-5060 possessed by him and was
selling it illegally. For the purpose, it is said that there is an offence registered under the Bombay Prohibition Act and going through the registered
offence, the aforestated facts have been elicited by the detaining authority in the grounds of detention from the solitary FIR registered against the
petitioner. However, if one may have a look at the order of detention, it is clear that there is only one offence registered against the petitioner.
Ms. Pooja Baswal, learned advocate for Shri Jaydeep Sindhi, learned advocate for the petitioner has drawn the attention of the Court to the grounds
of the impugned order of detention to submit that the only material on which the said order is based is the solitary offence registered against the
petitioner under the provisions of the Bombay Prohibition Act.
It is submitted that except the solitary offence registered against the petitioner, on the record of the said case, there was no other material before the
detaining authority. She further submitted that merely an offence has been registered against the petitioner under the Bombay Prohibition Act, without
anything more, and therefore, it cannot be said that the activities of the petitioner are prejudicial to the maintenance of public health and/or public
order. She has further contended that the subjective satisfaction recorded by the detaining authority is based upon the fact that the petitioner is a
“Bootlegger†as defined under Section 2(b) of ‘the Act’ and the same is contrary to the law laid down by the Hon’ble Supreme Court
in the case of Piyush Kantial Mehta V/s. Commissioner of Police, Ahmedabad City and another reported in 1989 Supp. (1) SCC 32.2 Ms Basawal,
learned advocate for the petitioner submits that even if registration of a solitary offence may be sufficient to brand him as Bootlegger as defined under
Section 2(b) of ‘the Act’, the petitioner cannot be preventively detained unless it is shown that the activities of the petitioner is prejudicial to the
maintenance of public order. She has further argued that in view of Sub-Section (4) of Section 3 of ‘the Act’, a deeming fiction is introduced
that the person carrying on activities whether as Bootlegger or Gambling House Keeper or Dangerous Person or Drug Offender or Immoral Traffic
Offender or Property Grabber may affect adversely or is likely to affect adversely the maintenance of public order. She has further submitted that
looking at the compilation alongwith the grounds of detention, which has been furnished to the detenue, it cannot be said that the registration of a
solitary offence can affect adversely or is likely to affect adversely the maintenance of public order. She has further contended that for an offence
under the Bombay Prohibition Act, he may be dealt with and if he is found guilty of the offence, he can be punished accordingly. But, such acts
constituting the offence under the Bombay Prohibition Act can never be said to have affected even the tempo of life of the community. At the same
time, by mere registration of offence under the Bombay Prohibition Act, it cannot be said that the activities carried on by the petitioner affects
adversely or is likely to affect adversely the maintenance of public order. Therefore, it is 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.
As against that, Ms. Moxa Thakkar, learned Assistant Government Pleader, argued that since the Indian made foreign liquor affects adversely the
health of public at large and when the petitioner is dealing with the same, he being branded as Bootlegger, his activities must be held to be affecting or
likely to affect the maintenance of public order.
She has further contended that the detaining authority has closely scrutinized the material available and has arrived at a subjective satisfaction based
on such material, and therefore, it is submitted that the order of detention passed by the detaining authority is just, legal and proper, and therefore, she
has contended that it does not warrant any interference by this Court.
As such, as a proposition of law, it can never be held that no order of detention can be passed based on solitary offence. However, from the very
registration of that solitary offence, if it is made out that the activities complained of in FIR is sufficient to record the subjective satisfaction that it has
affected adversely or it is likely to affect adversely the maintenance of public order, the order of detention can be passed.
In the case of Piyush Kantial Mehta (Supra), the Hon’ble Supreme Court has considered the legality and validity of the order 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 Act as well as statements of five anonymous witnesses residing in the areas where the detenue
was alleged to be carrying his illegal activities. The Hon’ble Supreme Court referred to the provisions of Section 2(b) of ‘the Act’, which
defines ‘Bootlegger’ and Section 3 of ‘the Act’, which provides for making orders detaining certain persons and held thus:
“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 concerned affect adversely or are likely to affect adversely the maintenance
of public orderâ€.
In order that the activity may be said to have affected adversely the maintenance of public order, there must be a material to show that there has
been a feeling of insecurity amongst the general public. If any act of a person creates panic or fear in the mind of the public, upsetting even tempo of
life of the community, such act must be said to have direct bearing on the question of maintenance of public order. The commission of offence will not
necessarily come within the purview of “Public Orderâ€. The distinction between the “Law and Order†and “Public Order†has been very
clearly laid down in the case of Pushkar Mukherjee and others V/s. State of West Bengal reported in AIR 1970 SC 85.2 In paragraph No.8 of the
said judgment, it has been held as under:
“...........Does the expression ""public order"" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act
of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a
street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities
under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The
contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In
this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure
the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a
secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the
Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.....â€
Adverting to the facts of the present case, perusal of the impugned order of detention shows that it is more or less similarly worded to the order
which was subject matter of challenge before the Hon’ble Supreme Court in the above referred decision. The only distinction between the two
orders is that, in the case before the Hon’ble Supreme Court, apart from the two offences registered against the detenue under the provisions of
the Act, there were statements of five anonymous witnesses, whereas, in the facts of the present case, the only material, on the basis of which the
impugned order of detention has been passed, is the solitary offence registered against the petitioner under the Bombay Prohibition Act. The only
ground on which the order of detention has been passed is that the petitioner is a ‘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. Though, the Supreme
Court in case of Pushkar Mukherjee and others (supra) has way back in the year 1988 held that, “it may be that the petitioner is a bootlegger
within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the
Act unless, as laid down in Sub-section (4) of Section 3 of the Act, his activities as a bootlegger affect adversely or are likely to affect adversely the
maintenance of public orderâ€.
The detaining authority, who is a high ranking Officer of State, day in and day out passes orders of detention, is either ignorant of law laid down by
the Hon’ble Supreme Court or has deliberately chose to turn blind eye on the same. In either case, it shows the detaining authority in poor light.
The Division Bench of this Court vide judgment and order dated 22nd August, 2000 rendered in the case of Ashok Balabhai Makwana V/s. State
of Gujarat in Letters Patent Appeal No.223 of 2000, after considering the decision of the Hon’ble Supreme Court in the case ofK anuji S.Zala
V/s. State of Gujarat and others reported in 1999 (2) GLH 415 held that:
“.....bald observation that the activities of the petitioner where a basic obstacle of public health or public order cannot be taken to be decisive so as
to arrive at the satisfaction that the activities of the petitioner were prejudicial to the public order or public health and that tempo of public life was
disturbedâ€.
The Court further held that:
“.....litmus test to find out as to whether it is a case of breach of public order or breach of public health is concerned, credible material has to be
thereâ€.
In the facts of the said case, apart from the allegations that petitioner was a bootlegger based on some registered cases, there were some
unregistered cases and on statements of anonymous witnesses against the petitioner therein, the Court held thus:
“........the only material which remains is the registered criminal cases and that by itself cannot be said to be a material for the purpose of holding
that the appellant's activities had become a threat to the public order and public health. Necessary material in this regard is totally wanting in the body
of the detention order itself. In large number of cases, the Supreme Court has considered that involvement in bootlegging activities even if coupled
with violence does not amount to threat to public order or public health. The 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 or public healthâ€.
Though in several cases, this Court has warned the detaining authorities that merely because the person can be said to be a ‘bootlegger’
within the meaning of Section 2(b) of ‘the Act’, an order of detention cannot be passed which are in flagrant violation of law laid down by the
Hon’ble Supreme Court as well as this Court in the cases cited herein above. The Court deems it fit to invite the attention of the detaining
authority to the following decisions of the Hon’ble Supreme Court in the case of Baradakanta Mishra V/s. Bhimsen Dixit reported in (1973) 1
SCC 446, where the Hon’ble Supreme Court held thus:
“Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the
deliberate and malafide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the
High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a
much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but
is also likely to subvert the Rule of Law 'and engender harassing uncertainty and confusion in the administration of law. Our view that deliberate and
malafide conduct of not following the binding precedent of the High Court is contumacious does not unduly enlarge the domain of contemptâ€
As such, based on registration of solitary FIR of a case under the Bombay Prohibition Act, no order of preventive detention could have been
passed unless reading the FIR itself, if it is successfully shown that the activities narrated therein affects or likely to affect the maintenance of public
order or it is in any manner prejudicial to the maintenance of public order.
There are several instances wherein at pre-execution stage even this Court has quashed proposed order of detention based on apprehension of
passing preventive detention order in cases of a solitary offence. One such case is rendered by this Court in Special Civil Application No.7826 of
2014. This Court is at a loss to understand how solitary case registered against the detenue can affect the maintenance of public order. As such, it has
not been reflected from the grounds of detention also that the solitary offence registered against the detenue has affected adversely or is likely to
affect adversely the maintenance of public order. At best, dealing in Indian made foreign liquor can be dealt with under ordinary law and the person
can be punished, if offence is proved against him. But, a liberty of a citizen cannot be tinkered with in a situation where a person can be dealt with
under an ordinary law. There is huge difference between the preventive detention, as also punitive detention. Therefore, detaining authority has to be
conscious enough while passing an order of preventive detention, more particularly, based on solitary offence registered against the detenue without
any material on record showing that it has affected adversely or likely to affect adversely the maintenance of public order. Merely because, a person
is branded as Bootlegger, as defined under Section 2(b) of ‘the Act’, on registration of an offence, he cannot be preventively detained, that too,
based on solitary offence unless it is shown from the registration of offence that the detenue is acting in any manner prejudicial to maintenance of
public order. Not only that, the said activity of the detenue must affect adversely or likely to affect adversely the maintenance of public order. Mere
selling or possessing any Indian made foreign liquor or even a beer tin, cannot cause or likely to cause any harm, danger, alarm or feeling of insecurity
amongst the general public or any section thereof or a grave or widespread danger to life, property or public health. Therefore, based on solitary
offence, without any other material reflecting from the FIR or any supporting documents or material, no order of preventive detention could be passed
taking away the liberty of a citizen. Here, in the present case, the order of detention is liable to be quashed as it is based on solitary FIR, which does
not reflect that the activity of the detenue is such that it affects or likely to affect the maintenance of public order.
In view thereof, Special Civil Application is allowed. The impugned order of detention dated 12.04.2019 passed by the learned District Magistrate,
Chotta Udaipur in MAG/PASA/VASHI/21/2019 is hereby quashed and set aside. The detenue - Samdubhai Khurbanbhai Rathwa is ordered to be set
at liberty forthwith if not required in any other case. Rule is made absolute accordingly.
Direct service is permitted.