Dineshbhai @ Beriyopalsing Gurkha vs State of Gujarat and 2

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 01.11.2011 passed by the PoliceCommissioner, Vadodara City, and he has been declaredas 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 Sayajiganj Police Station III-C.R.No. 75 of 2011, 613 of 2011, 620 of 2011 and 627of 2011 under the Prohibition Act have beenregistered against the detenu, wherein it is allegedthat a total quantity of 173 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 liquorwhich is harmful to the health of the public. It isheld by the detaining authority that as the detenu isindulged in illegal activities, it is required torestrain the detenu from carrying on further illegalactivities, i.e. selling liquor. The detainingauthority has placed reliance on the above registeredoffence and statements of unnamed witnesses. In theopinion 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 thegrounds that a general statement that has been madeby the detaining authority that consuming liquor isinjurious to health. In fact, a perusal of the orderpassed by the detaining authority shows that thegrounds which are mentioned in the order are inreference to the situation of "Law and order" and not"public order". Therefore, on this ground, thesubjective satisfaction arrived at by the detainingauthority is vitiated on account of non-applicationof mind and the impugned order, therefore, deservesto be quashed and set aside.

Except the statements of some anonymous witnesses,there is no material on record which shows that thedetenu is carrying on activities of selling countrymade liquor which is harmful to the health of thepublic. In the case of Ashokbhai 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 is clear 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 casewould not fall within the category of threat to"public order". In that view of the matter, when theorder of detention has been passed by the detainingauthority without having adequate grounds for passingthe said order, it cannot be sustained and,therefore, it deserves to be quashed and set aside.

The petition is allowed. The impugned order ofdetention dated 01.11.2011 passed by the PoliceCommissioner, Vadodara City, passed against thedetenu is hereby quashed and set aside. The detenu isordered to be set at liberty forthwith, if notrequired in any other case. Rule is made absoluteaccordingly. Direct service is permitted.