Madhuben through Bakul Giris vs Commissioner of Police and Others

J.C. Upadhyaya, J.—By filing present Petition under Article 226 of the Constitution of India, the Petitioner-detenue has prayed to quash and set aside the order of detention dated 18.6.2010 passed by the Respondent No. 1 - Commissioner of Police, Surat City, in exercise of powers under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "PASA Act"), wherein the lady Petitioner is branded as "bootlegger".

Heard Mr. N.M. Kapadia, learned Advocate for the Petitioner and Mr. L.B. Dabhir, learned AGP for the Respondents. Affidavit in reply filed by Respondent No. 1 -Commissioner of Police has been taken into consideration.

The Petitioner came to be detained as "bootlegger" on her involvement in four offences under the Bombay Prohibition Act.

It has been submitted by the learned Counsel for the Petitioner that it is a settled legal position that on registration of four offences, No. order of detention could have been passed, as Petitioner - detenu cannot be branded as "bootlegger". It has been further submitted that the activities of the Petitioner cannot be said to be injurious to the public health or public order. It has been further submitted by the learned Counsel for the Petitioner that there is gross delay in passing the order of detention as well as there is gross delay in executing the order of detention.

Per contra, Mr. L.B. Dabhi, learned AGP for the Respondents supported the detention order passed by Respondent No. 1-Commissioner of Police, Surat City and submitted that considering the relevant papers, the detaining authority has passed the order and the order is legal and proper, and therefore, the petition deserves dismissal.

I have gone through the grounds of detention and considered the arguments advanced on behalf of both the sides.

The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the Petitioner. It is seen from the grounds that a general statement 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 of 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 general statement, there is No. material on record which shows that the Petitioner - detenue is carrying on illegal activities of selling liquor or is engaged in such activity, which is harmful to the health of the public. In the case of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI v. POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393 , having considered the decision of the Hon''ble Apex Court in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, this Court held that the cases wherein the detention orders are passed on the basis of the statements of such witness 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, the detaining authority must come to a definite findings that there is threat to the ''public order'' and it is very clear that the present case would not fall within the category of threat to a 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, cannot be sustained, and therefore, it deserves to be quashed and set aside.

In the result, this petition is allowed. The impugned order of detention dated 18.6.2010 passed by Respondent No. 1 - The Commissioner of Police, Surat City, 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 permitted.