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Gujarat High Court
K.S. Jhaveri, J.
Vasava Umeshbhai Laxmanbhai —Appellant
versus
State of Gujarat and Ors. —Respondent
Special Civil Application No. 6311 of 2015
Decided On: 01.05.2015
For Appellant/Petitioner/Plaintiff:Vijay H. Nangesh, Advocate
For Respondents/Defendant: Rakesh Patel, AGP
IMPORTANT POINT
Merely because a person is a bootlegger, he cannot be preventively detained under provisions of PASA Act.
Headnote:Bombay Prohibition Act, 1949—Sections 66(B), 65(A)(E) and 81—Detention— Petitioner has been detained as a bootlegger—Detaining authority has failed to substantiate that alleged antisocial activities of petitioner-detenue adversely affect or are likely to affect adversely maintenance of public order—Just because a case has been registered against petitioner-detenue under Prohibition Act, by itself, does not have any bearing on maintenance of public order—Petitioner may be punished for alleged offences committed by him but acts constituting offences cannot be said to have affected even tempo of life of community much less public health—Merely because he is a bootlegger, he cannot be preventively detained under provisions of PASA Act—Impugned order of detention quashed. (Paras 7 and 8)
Result: Special Civil Application allowed.
JUDGMENT
K.S. Jhaveri, J.—Rule. Learned AGP Mr. Rakesh Patel waives service of notice of Rule on behalf of the Respondents.
2. By way of this petition, the petitioner-detenue is apprehending his detention pursuant to FIR being prohibition C.R. No. I-55/2015 with Dediyapada Police Station, Dist. Narmda under Section 66(B), 65(A)(E) and 81 of the Bombay Prohibition Act. The petitioner has preferred present petition at pre-execution stage to avoid his detention.
3. I take notice of the fact that the petitioner has been detained as a ‘bootlegger’. I also take notice of the fact that the detaining authority has relied upon one case registered with the Dediyapada Police Station, Dist. Narmada vide C.R. No. I-55/2015 for the offence punishable under Section 66(B), 65(A)(E) and 81 of the Bombay Prohibition Act.
4. Section 2(b) of the PASA Act defines the term ‘bootlegger’, which reads as under:—
“S. 2(b) “bootlegger” means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 (Bom. XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animals, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing.”
5. Section 3 of the PASA Act speaks about the power to make orders detaining certain persons. It reads as under:
“Sec. 3 Power to make orders detaining certain persons:
(1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate or the Commissioner of Police, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.
(3) When any order is made under this section by an authorised officer, he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, has a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.
(4) For the purpose of this section, a person shall be deemed to be “acting in any manner prejudicial to the maintenance of public order” when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
Explanation:- For the purpose of this subsection, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health.”
6. In this connection, I may refer to a decision of the Supreme Court in Pushker Mukherjee v. State of West Bengal, AIR 1970 SC 852 where the distinction between ‘law and order’ and ‘public order’ has been
