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2011 Supreme(Guj) 203
2011 (2) GCD 1440 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice J.B. Pardiwala
Aartiben W/o Nandubhai Jayantibhai Sujnani
Versus
Commissioner of Police & Ors.
Letters Patent Appeal No. 2732 of 20101—Decided on 28/03/2011
Appearance :
Mr. Anil S. Dave, for the Appellant No. 1.
None, for the Respondents No. 1, 3.
Government Pleader, for the Respondent No. 2.
Point in Issue :
Whether petitioner’s detention as a bootlegger is sustainable.
Headnote:Head Note :
Gujarat Prevention of Anti-Social Activities Act, 1985 — Sections 2(b), 3 and 3(4) — Detention — As a bootlegger — Sustainability — Merely because petitioner is a bootlegger, she can not be detained under the provision of the Act unless her activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order — In the instant case detaining authority has failed to substantiate that activities of petitioner in any way adversely affect maintenance of public order — Court set aside the impugned order and ordered to set him free.
Held :
Our opinion, the detaining authority has failed to substantiate that the alleged antisocial activities of the appellant-detenu adversely affect or are likely to affect adversely the maintenance of public order. Just because four cases have been registered against the appellant-detenu under the Bombay Prohibition Act, by itself, do not have any bearing on the maintenance of public order. The appellant may be punished for the alleged offences committed by her but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community much less public health. It may be that the appellant detenu is a ‘bootlegger’ within the meaning of Section 2(b) of the PASA Act, but merely because she is a ‘bootlegger’ she cannot be preventively detained under the provisions of the PASA Act unless, as laid down in sub-section (4) of Section 3 of the PASA Act, her activities as a ‘bootlegger’ affect adversely or are likely to affect adversely the maintenance of public order. [Para 6]
Law Laid Down :
Merely because one is a bootlegger, he/she cannot be preventively detained unless his/her activities adversely affect maintenance of public order.
J.B. Pardiwala, J.—This writ of habeas corpus has been preferred by the petitioner, a lady, challenging the order of detention passed by the Commissioner of Police, Ahmedabad city, in exercise of powers conferred on him under Sub-section (1) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short, ‘the PASA Act’) and also for an order to set her free from detention.
2. Learned Single Judge rejected the Special Civil Application vide judgment and order dated 8th October 2010 after finding no illegality in the order of detention, against which, this Appeal has been preferred.
We take notice of the fact that the appellant – writ petitioner has been detained as a ‘bootlegger’. We also take notice of the fact that in the grounds of detention dated 11th June 2010, the detaining authority has relied upon four cases which have been registered against her for the offences punishable under the provisions of the Bombay Prohibition Act. All these cases have been shown as pending investigation. Out of the four cases which have been relied upon, the first two cases are of the year 2007 and 2008 respectively and the other two cases are of the year 2010. Relying upon the registration of four cases against the appellant-detenu under the Bombay Prohibition Act, the detaining authority has reached to the subjective satisfaction that the activities of the appellant as a ‘bootlegger’ have disturbed the public order.
3. Section 2(b) of the PASA Act defines the term ‘bootlegger’, which reads as under:—
“Section 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.”
4. Section 3 of the PASA Act speaks about the power to make orders detaining certain persons. It reads as under:
“Section 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 sub-
