Shobhanaben Kharwa vs District Magistrate and Others

Honourable Mr. Justice M.D. Shah

The petitioner has been detained under the provisionsof Gujarat Prevention of Anti-Social Activities Act,1985 (hereinafter referred to as `the Act of 1985'')by the order dated 04.10.2011 passed by the DistrictMagistrate, Sabarkantha at Himmatnagar, and he hasbeen declared as bootlegger.Heard learned advocate for the petitioner and thelearned AGP for the State. Also perused the record.

From the grounds of detention, it appears that fouroffences being Bhiloda Police Station ProhibitionC.R.No.5155 of 2011, 5124 of 2011, 5002 of 2011 and5150 of 2011 under the Prohibition Act have beenregistered against the detenu, wherein it is allegedthat a total quantity of 435 ltrs.of country madeliquor was found from the possession of the detenu.On the basis of registration of this case, thedetaining authority held that the present detenu wascarrying on activities of selling country made liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenu is indulged in illegal activities, it is required to restrain the detenu from carrying on further illegal activities, i.e. selling liquor. 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 detenucan, by no stretch of imagination, can be said to bedisturbing the "public order". It is seen from the grounds that a general statement that 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 arrived at by 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 statements of some anonymous witnesses, there is no material on record which shows that the detenu is carrying on activities of selling country made liquor which is harmful to the health of the public. In the case of Ashok bhai Jivraj @ JivabhaiSolanki v. Police Commissioner, Surat [(2001) (1) GLH 393), having considered the decision of the Hon''bleApex Court in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , this Court held that thecases wherein the detention order passed on the basis of the statements of the witnesses fall under the maintenance of "law and order" and not "public order".

Applying the ratio of the above decisions, it isclear that before passing an order of detention of adetenu, the detaining authority must come to adefinite finding that there is threat to the "publicorder" and it is very clear that the present case would not fall within the category of threat to"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, it cannot be sustained and, therefore, it deserves to be quashed and set aside.

The petition is allowed. The impugned order of detention dated 04.10.2011 passed by the DistrictMagistrate, Sabarkantha-Himmatnagar, passed against the detenu is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.