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Judgment
This petition is directed against the order of detention dated 31.10.2017 passed by respondent No.2, in exercise of powers conferred under
section 3[1] / 3[2] of the Gujarat Prevention of Anti Social Activities Act, 1985 [for short the Act] by detaining the detenue as a bootlegger as
defined under section 2[b] of the Act.
Learned advocate for the detenue submits registration of two FIRs itself cannot lead to disturbance of even tempo of public life and, therefore,
the public order. He further submits that, except FIR registered under the Bombay Prohibition Act, there was no other material before the
detaining authority whereby it could be inferred reasonably that the detenue is a bootlegger within the meaning of Section 2[b] of the Act and
required to be detained as the detenues activities are prejudicial to the maintenance of public health and public order. In support of the above
submission, learned counsel for the detenue has placed reliance on judgment of the Honble Apex Court in case of Piyush Kantilal Mehta vs.
Commissioner of Police, reported in AIR 1989 S .C. 491, Anil Dey v. State of West Bengal reported in AIR 1974 SC 832, Smt. Angoori Devi v.
Union of India reported in AIR 1989 SC 371 and Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of Tamil Nadu reported in AIR
2003 SC 971 and the recent judgment dated 28/3/2011 passed by the Division Bench of this Court [Coram : S.K. Mukhopadhyaya, C.J. & J.B.
Pardiwala, J.] in Letters Patent Appeal No. 2732 of 2010 in Special Civil Application No. 9492 of 2010 [Aartiben vs. Commissioner of Police]
which would squarely help the detenue.
Learned AGP submitted that registration of FIR would go to show that the detenue had, in fact, indulged into such activities, which can be said
to be disturbing the public health and public order and in view of sufficient material before the detaining authority to pass the order of detention, no
interference is called for by this Court in exercise of its power under Article 226 of the Constitution of India.
Having heard the rival submissions of the parties and perused the record of the case, I am of the view that two FIRs registered under the
Bombay Prohibition Act alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged,
are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the
public order. On careful perusal of the material available on record and the ratio laid down by the Apex Court in above cited cases and the recent
judgment dated 28/3/2011 passed by the Division Bench of this Court in Letters Patent Appeal No. 2732/2010, I am of the view that the activities
of the detenue cannot be said to be in any manner prejudicial to the public order and, therefore, the order of detention passed by the detaining
authority cannot be sustained and is required to be quashed and set aside.
The petitioner has argued on merits of FIR, referring certain judgments. However, discussion of such facts, prima facie at this stage, is not
warranted since it may otherwise prejudice the trial.
However, since all such orders are quashed on technical grounds, the same shall not come in the way of the Detaining Authority to pass an
appropriate order in future.
It is generally seen that though some of the accused are repeatedly detained on different occasions for different offences, only because of non
disclosure of proper information and in all such detention orders, such orders are generally quashed and set aside by the Court. It is also seen that
because of quashing of previous detention order, competent authority could not consider the grounds of detention under such order which is
already quashed as a ground for detention for subsequent offences by the same detenue. However, when competent authorities are not abiding by
all other cited cases while passing the order of detention based upon two offences, it is surprising to note that at no point of time they have
challenged the observation of any Court that when previous order of detention has been quashed, it cannot be considered in subsequent detention.
It goes without saying that if a particular detenue continues to commit the similar offences repeatedly, and if he is required to be detained
repeatedly then atleast at some point of time, the competent authority shall compile all the information and shall consider it for fresh detention order
as and when necessary and shall produce all such information before the Court so as to avoid the quashing of such detention order. If competent
authority fails to take up such exercise and when in impugned order of detention all such facts were not disclosed or considered for passing such
order, the detention order is required to be dealt with as it is without considering the additional disclosure in affidavit-in-reply by the respondents.
7.1 In the present case, it seems that petitioner has been detained several times but at present, the detention order under challenge does not
disclose all such facts so as to enable the petitioner to properly represent his case. Hence, there is no option but to consider that present order of
detention is solely based upon two offences. Therefore, considering the settled legal position that no person can be detained for two offences, the
Court has no option but to quash and set aside the order of detention, irrespective of quantity of LIQUOR found from the detenue and other
material that might have been found in the affidavit in reply.
7.2 In view of above facts and circumstances, it would be necessary to observe that the competent authority is not precluded from disclosing all
material facts while detaining the petitioner if so required for any offence that he might commit hereinafter. In other words, though impugned order
is quashed and set aside at present, it would not come in way of the competent authority for quoting such FIR and order of detention, thereby to
treat petitioner as a habitual offender in case of commission of offence repeatedly.
7.3No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order
of preventive detention. But, failure of the detaining authority to consider the possibility of either launching of or pendency of criminal proceedings
may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question as to
whether it was necessary to make an order of preventive detention. Since there is an allegation that the order of detention is issued in a mechanical
manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the
purpose. The detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. In the case
on hand, the detaining authority failed to satisfy the court that the detaining authority so bore the question in mind and, therefore, the court is
justified in drawing the inference that there was no application of mind by detaining authority to the vital question of whether it was necessary to
preventively detain the detenue. It is also fruitful to refer to the decision of the Honble Apex Court rendered in the case of Rekha V/s. State of
Tamil Nadu through Secretary to Government and another reported in (2011)5 SCC 244 wherein, it is observed by the Honble Apex Court that if
a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation,
then and only then, preventive detention can be taken recourse to.
In the result, the petition is allowed. The order of detention dated 31.10.2017 passed by the respondent No.2 is quashed and set aside. The
detenue is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service
is permitted.