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Judgment
A.J. Desai, J
[1] This petition is directed against the order of detention dated 11.12.2019 passed by respondent No.2 herein - Commissioner of Police, Surat in
exercise of powers conferred under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short “the PASA Actâ€) by
detaining the detenue as a “bootlegger†as defined under Section 2(b) of the Act. Along with the order of detention, the detenue is also served
with the grounds of detention. In the grounds of detention, there is a reference to one criminal case pending against the detenue. The case is
registered under the provisions of the Bombay Prohibition Act.
[2] Learned advocate for the detenue submits that registration of FIR itself cannot lead to disturbance of even tempo of public life and therefore the
public order. The order of detention is assailed by the detenue on various grounds mentioned in the memo of the petition. However, learned counsel
for the detenue 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 detenue's 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 Apex Court in the case of Piyush Kantilal Mehta vs. Commissioner of police, AIR 1989 Supreme
Court 491 and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala,
J].] in Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police) which would
squarely help the detenue.
[3] Learned Assistant Government Pleader 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.
[4] Having heard the rival submissions of the parties and perused the record of the case, I am of the view that FIR 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 the case of Piyush Kantilal Mehta (supra)
and the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J].] in
Letters Patent Appeal No2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police), 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.
[5] In the result, the petition is allowed. The impugned order of detention dated 11.12.2019 passed by respondent No.2 herein, is hereby quashed and
set aside. The detenue is ordered to be set at liberty forthwith if he is not required to be detained in connection with any other case. Rule is made
absolute accordingly.
Registry is directed to communicate this order to the concerned Jail Authority by fax / e-mail message forthwith.