Hamid @ Imran Ismilebhai Gadan-Vadha Muslim vs State Of Gujarat

Umesh A. Trivedi, J

[1.0.] This petition under Article 226 of the Constitution of India is directed against the order of preventive detention bearing No. PCB/DTN/PASA/18/2020 made by the Police Commissioner, Rajkot City, dated 28.02.2020 in exercise of powers under Subsection (2) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (herein after referred to as 'the Act') whereby, the petitioner has been detained as a 'bootlegger'. There is inordinate delay in passing of the order.

[2.0.] Mr. Bharatkumar Desai, learned advocate for the petitioner, submitted that for passing an order of preventive detention against the petitioner - detenue, the detaining authority has considered two cases registered under the provisions of the Gujarat Prohibition Act (for short, 'the Prohibition Act') only being (I) Prohibition C.R.No.203 of 2019 registered with Thorada Police Station, Rajkot City, and (ii) Prohibition C.R.No.128 of 2019 registered with Thorada Police Station, Rajkot city for the offence punishable under Sections 65(e), 116-B and 98(2) of the Prohibition Act. He has submitted that the registration of offences under the Prohibition Act may be an issue of law and order and not the public order. It is submitted that other than the registered offences against the petitioner, there was no other material before the detaining authority. It is further submitted that merely because offences have been registered against the petitioner under the Prohibition Act without anything more, it cannot be said that activities of the petitioner are prejudicial to the maintenance of public health and/or public order. Referring to the impugned order, it is pointed out that the subjective satisfaction of the detaining authority is based upon the fact that the petitioner is a 'bootlegger', as defined under Section 2(b) of the Act to submit that the same is contrary to the law laid down by the Supreme Court in the case of Piyush Kantilal Mehta V/s. Commissioner of Police, Ahmedabad reported in AIR 1989 SC 491. It is submitted that for the offence under the Prohibition Act, the petitioner may be punished as provided under the said Act but such acts constituting the offence under the Prohibition Act cannot be said to have affected even the tempo of life of the community. It is urged that 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 and/or public health. It is accordingly submitted that the subjective satisfaction recorded by the detaining authority being based on no material stands vitiated and as such, the impugned order of preventive detention deserves to be set aside.

[3.0.] As against that, Shri Utkarsh Sharma, learned Assistant Government Pleader, has supported the impugned order of detention. It is submitted that detaining authority had closely examined the proposal made by the sponsoring authority and upon being subjectively satisfied by the activities of the petitioner, which are prejudicial to the maintenance of public health and/or public order, has passed the impugned order which is legal and proper and does not warrant an intervention by this Court.

[4.0.] In Piyush Kantilal Mehta (Supra), the Supreme Court was considering the legality and validity of an order of detention passed by 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 Bombay Prohibition Act, 1949 as well as statements of 5 anonymous witnesses residing in the area where the detenue was alleged to be carrying on illegal activities. The Supreme Court referred to the provisions of Section 2(b) which defines 'Bootlegger' and provision of Section 3 which provides for making orders detaining such persons and held thus:

"12. Under sub-section (1) of section 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 Section 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 subsection (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 order.

(Emphasis supplied)

[5.0.] The Supreme Court referred to the offences registered against the said detenue and observed that:

"There can be no doubt that offences alleged to have been committed by the petitioner have no bearing on the question of maintenance of public order".

[6.0.] Adverting to the facts of the present case, perusal of the impugned order of detention reflects that the petitioner is of criminal mind. The petitioner - detenue is alleged to be dealing with English liquor. Though detenue is fully conscious that in the State of Gujarat, there is a Prohibition law, without any pass or permit, with an only object to earn money, he imported English liquor for sell from other States and provided it to his accomplices and thereby he is earning ill- gotten money. It is further stated in it that the consumption in excess of English liquor by the person causes health issues for them. Over and above that, it ruins their families economically also. Thus, the alleged activities by the petitioner are said to be in breach of maintenance of public order and public health in the city of Rajkot causing serious health issues of the people of Rajkot City.

[7.0.] 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. So far as order passed against the petitioner is concerned, the detaining authority relies only on registered cases and there is no other material even in the form of anonymous witnesses. Mere registration of cases under the Prohibition Act against the petitioner is purely a problem of law and order and he can be suitably punished or dealt with under the said Act. Unless, the registration of those cases explicitly show that the activities are in breach of maintenance of public order then only an order of preventive detention can be passed against the detenue. Considering the cases mentioned in the order of detention it reflects that there is no issue at all with regard to disturbance of any public order. It is only a question of law and order situation to be dealt with under the common law.

[8.0.] The bald observation, in absence of any credible material, that the activities of the petitioner were obstacle to public health and/or public order cannot be taken as decisive so as to arrive at a satisfaction that the activities of the petitioner were prejudicial to the public order or public health and that tempo of public life is disturbed.

[9.0.] Thus, the only material which remains about the registered criminal cases cannot be said to be material for the purpose of holding that the petitioner's activities had become a threat to the public order and/or public heath. 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 coupled with violence does not amount to a 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 health.

[10.0.] In the present case, except for mere mention of allegations, there is no other material which can be said to be germane for the purpose of arriving at the satisfaction that the activities of the petitioner are in breach of public order and/or public health. In the circumstances, subjective satisfaction recorded by the detaining authority not being based on any credible material stands vitiated and as such, the impugned order of detention cannot be sustained.

[11.0.] Over and above that, if at all, the activity of the petitioner was such that he is required to be prevented immediately, a prompt action could have been initiated by the detaining authority. Considering the registered cases, last case appears to have been registered against the detenue on 27.07.2019 where he was arrested on 08.01.2020. However, vide an order dated 21.01.2020, the petitioner- detenue came to be released on bail by the Competent Court. If at all, the activities of the petitioner were so imminent posing serious threat to the maintenance of public order, without any loss of time, may be in a reasonable time, the preventive detention order could have been passed against him. Though the petitioner - detenue was released on bail in last offence on 21.01.2020, the impugned order of detention came to be passed nearly after 1 month from the date of his release on bail in last offence and the detention order came to be executed upon the petitioner only on 28.02.2020. If one may have to consider his activities, last case against him came to be registered on 27.07.2019 therefore, live link between the prejudicial activities of the petitioner is snapped by the delay caused in passing the order of preventive detention. Even there is delay in passing the order from the date his release in last offence. On that ground also, the order of preventive detention cannot be sustained.

[12.0.] In view of the above, the petition is allowed. The impugned order of detention bearing No.PCB/DTN/PASA/18/2020 passed by respondent No.2 herein - the Police Commissioner, Rajkot City, dated 28.02.2020, is hereby quashed and set aside and the petitioner - detenue is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute.