( 1 ) THESE two matters have come before us by way of reference from the Division Bench consisting of Justices K. J. Vaidya and S. D. Dave. The said Division Bench was taking up detention matters and in the course thereof, was dealing with the aforesaid two Special Criminal Applications where the detenus were under preventive detention as per the provisions of Prevention of Anti-Social Activities Act popularly known as PASA. It was urged on behalf of the detenus that the detaining authorities have not considered any other less drastic measure and therefore, the detention suffers from the vice of nonapplication of mind. To this counter was advanced on behalf of the respondent- state in two fold manner. Firstly, it was urged that, by its very nature, detention under PASA cannot have, as an alternative, any measure less or otherwise and secondly, looking to the facts and circumstances of the case, and with pointed attention to the detention order itself, what has been missing is referance to sec. 57 of the Bombay Police Act under which extemment proceedings could have been initiated. Uptill now there has been several decisions of various division Benches of this Court where non-reference to aforesaid Sec. 56 of the B. P. Act has been considered to be fatal and as a result, such detention orders have been quashed and set aside.

( 2 ) THIS matter was required to be referred mainly on account of a decision of a Division Bench of this Court reported on [1989 (2) J XXX (2) GLR 1429 (hereinafter referred to as Ashwin case ).

( 3 ) THE learned Judges while dealing with that matter have come across a situation that a boot-legger was sought to be dealt with under Sec. 57 of the B. P. Act. The said Sec. 57 specifically deals with boot-legging activity and persons connected with it as it was not possible for the concerned authorities to press the said Section in their favour for want of confirmation under the bombay Prohibition Act, 1949. In that very proceeding they had a recource to Sec. 56 of the B. P. Act. In the course of the judgment, almost in the last paragraph, it has been observed by the learned Judges of the Division bench that Sec. 57 being specially therefor boot-leggcrs in case the authorities failed in their attempt to invoke Sec 57, they cannot alternatively fall back on Sec. 56. In other words, there being a special section dealing with the situation relating to boot-legger, the other provisions of the Act cannot be pressed into service, as an alternative.

( 4 ) THIS reasoning would clearly indicate that in cases under PASA also, if the detenu happens to be a boot-legger and while passing a Detention Order pertaining to him, if Sec. 57 has been referred to in the Detention Order, obviously, Sec. 56 was no longer available to the authorities concerned and as a result, its absence would not in any way affect the detention order under challenge. This precisely is the position in both the matters. The detenu in both the cases was involved in boot-legging activity alongwith other activities which would also make it possible for the Detaining Authority to treat him as a dangerous person, the expression as understood in PASA. For definition of these two expressions one may refer Sec. 2 clauses (b) and (c ). Obviously, therefore, following the said Ashwin cases reasoning, absence of reference to Sec. 56 of the B. P. Act cannot be said to be non-application of mind.

( 5 ) NOW, coming back to the second limb of the argument, namely availability of less drastic measure, in order to qualify to be a measure less drastic or otherwise, its effect and time taken for giving that effect will have to be borne in mind. This is necessary because the order being passed under pasa has the result of detaining a person, of course, preventively with immediate effect.

( 6 ) VIEWED in this light, obviously, proceedings under Sec. 56 or 57 of the B. P. Act read with Sec. 59 thereof will woefully fall short of bringing about the desired effect