Pradeep alias Kalla Mohansing Hakimsing Rajput vs Commissioner of Police and Others

H.B. Antani, J.—By filing this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the order of detention No. PCB/DTN/PASA/619/2009 dated 30.09.2009 passed by the Police Commissioner, Ahmedabad City respondent No. 1 in exercise of powers under Sub-section (1) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 [hereinafter referred to as the PASA Act] detaining the petitioner as a bootlegger, as being illegal, invalid, arbitrary, void ab-initio and suffers from total non-application of mind and also in violation of the provisions of Articles 21 and 22 of the Constitution of India.

Learned advocate for the petitioner, Mr. Satish Patel, submitted that the grounds of detention do not indicate any satisfaction recorded by the detaining authority that the activities of the detenu are detrimental to public order, and, therefore, the detention order is bad and illegal. He further submitted that the detaining authority has placed reliance on two registered offences but the same do not indicate anything to support disturbance to public order. He further submitted that the offence registered are as back as 22.10.07 and 26.08.09 while the detention order is passed on 30.09.2009. It appears that the last offence registered against the petitioner was dated 26.08.09 and order of detention was passed on 30.09.2009 and hence there is a delay in passing the order of detention.

Ms. Trusha Patel, learned AGP submitted that the detention order is just and proper and detaining authority has passed the order after considering all relevant aspects of the matter, and the same needs no interference.

Heard learned advocate Mr. Satish Patel for the petitioner and Ms. Trusha Patel, learned AGP for the respondents. I have also perused the records.

It appears that on the basis of two cases, viz. Prohibition FIR No. 5547/07 dated 22.10.2007 registered at Amraiwadi Police Station for 29 bottles of foreign liquor and 29 tins of beer and Prohibition FIR No. 5017/09 dated 26.08.09 registered at DCB Police Station for 92 bottles of foreign liquor registered against the petitioner, the detaining authority held that the said activities of selling liquor of the present detenu were harmful to the health of the public, and to restrain from carrying further illegal activities, the detenu has been detained. It appears from the order that the activities of the detenu cannot be said to be disturbing the ''public order''. It also appears from the order passed by the detaining authority that grounds which are mentioned in the order are in reference to the situation of ''law and order'' and not ''public order''.

Learned advocate for the petitioner submitted that the detaining authority has placed reliance on two cases, viz. Prohibition FIR No. 5547/07 dated 22.10.2007 registered at Amraiwadi Police Station for 29 bottles of foreign liquor and 29 tins of beer and Prohibition FIR No. 5017/09 dated 26.08.09 registered at DCB Police Station for 92 bottles of foreign liquor. It appears that the first offence was of 22.10.2007 and therefore it is a stale case. The last offence was of 26.08.2009. The order of detention was passed on 30.09.2009 and hence there is a delay in passing the order of detention. The delay caused in passing the order of detention is not satisfactorily explained. In the case of Elesh N. Patel v. Commissioner of Police reported in 1997(1) GLH 381, in paragraph 21, this Court held as under:

There appears to be some substance in the contention of the petitioner that these two unregistered cases have been referred only with a view to cover up the gap or delay makes a ground of detention not proximate, vitiating the order of detention itself. If I am to buttress my findings, I would say the reference may be made to the decision of the Supreme Court in Anand Prakash Vs. The State of Uttar Pardesh and others, and Pradeep Nikanth Paturkar Vs. S. Ramamurthi and others,

Hence, I am of the view that on the ground of delay caused in passing the order of detention itself, this petition requires to be allowed.

That apart, except the statements of some anonymous witnesses, there is no material on record which shows that the detenu is carrying on activities of selling liquor which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat (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 as under in paragraphs 22:

So far as the cases against the detenu are concerned, they have already been registered. They were against persons mentioned therein which is stated in the grounds of detention by the detaining authority. Regarding two statements having taken into account, the law laid down by the Supreme Court in Dr. Ram Manohar Lohia Vs. State of Bihar and Others, and reiterated from time to time including decisions referred to by us hereinabove, the case falls under the maintenance of ''law and order'' and not ''public order''. The subjective satisfaction arrived at by the detaining authority, therefore, cannot be said to be legal, valid and in accordance with law. Since in the facts and circumstances, an order of detention could have been passed by the detaining authority for maintenance of ''public order'', the order deserves to be quashed and is hereby set aside.

In the case of Collector and Dist. Magistrate and Others Vs. S. Sultan, the Apex Court held as under:

The crucial issue, therefore, is whether the activities of the detenu were prejudicial to public order. While the expression ''law and order'' is wider in scope inasmuch as contravention of law always affects order. ''Public order'' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ''law and order'' and ''public order'' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting ''public order'' from that concerning ''law and order''. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed"? This question has to be faced in every case on its facts.

"Public order" is what the French call ''ordre publique'' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed See Kanu Biswas Vs. State of West Bengal,

Applying the ratio of the above decisions, it is clear that before passing an order of detention of a detenu, the detaining authority must come to a definite finding 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 ''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 30-09-2009 passed by the passed by the Police Commissioner, Ahmedabad City respondent No. 1 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.