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2020 Supreme(Guj) 366
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
Ramchandra @ Chandan S/O Ramjeet Yadav – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 818 of 2020
Decided on : 26-05-2020
Advocate Appeared:
For the Appellant : JIGNESHKUMAR P. PANDAV, MEHUL A SURATI
For the Respondent: NIDHI VYAS, Adv
Point of Law:
When ordinary law of the land is capable of handling his case, even when he appears to be making a dent in the policy of prohibition, however, breach of law and order is one thing and threat to the public order is a separate issue altogether. His action does not require extreme steps of provisions under the PASA Act.
Headnote:
Gujarat prevention of Antisocial activities Act, 1985 - subsection (2) of section 3 - Gujarat police Act - Section 57(c) - Gujarat Prohibition act - Section 65(e)(a), 98 (2), 116B - Constitution of India Act,1950 - Article 226 - Detention order - Petition is preferred challenging order - Respondent in exercise of powers aggrieved by detention and therefore has challenged same in this petition - Alleged in grounds of detention that detenue is a bootlegger as per of PASA Act and his activities are prejudicial to maintenance of public order - It is also grievance on part of petitioner that merely because is allegedly involved Prohibition Act he cannot be termed as bootlegger provisions of PASA Act unless his activities as a bootlegger affect adversely in maintenance of public order only offence which has been alleged against him is First Information Report in connection with registered with police station on for offences punishable - Held, Court order of detention passed by respondent Gujarat Prevention of Anti-Social Activities Act, and directing jail authority to release detenue from detention if not required in any other matter petitioner is directed to file an undertaking within days before this Court and before Police Commissioner by personally attending to his office - Court shall abide by order without fail and shall also further ensure surety of his good conduct to satisfaction of officer concerned lest officer concerned shall be at liberty to take necessary action for any breach that may be committed of undertaking - Petition has been dealt with by an ordinary law of land and case against him ordinary law of land is being dealt with and has been granted regular bail by court trial is still pending and shall be dealt with in accordance with law - Court to uphold version of detaining authority of terming him as a bootlegger whose activities causes serious threat to public health and order - This being a solitary offence and considering nature of allegations and also his involvement only once in past which also is not regarded by detaining authority in order impugned according to this Court - Petition allowed (para 12)
Facts of the Case:
Grounds of detention that the detenue is a bootlegger, as per section 2 (b) of the PASA Act and his activities are prejudicial to the maintenance of public order. It is also the grievance on the part of the petitioner that merely because he is allegedly involved under the Prohibition Act, he cannot be termed as bootlegger under the provisions of PASA Act, unless his activities as a bootlegger affect adversely in the maintenance of public order.
Finding of the Court:
Court order of detention passed by respondent Gujarat Prevention of Anti-Social Activities Act, and directing jail authority to release detenue from detention if not required in any other matter petitioner is directed to file an undertaking within days before this Court and before Police Commissioner by personally attending to his office - Court shall abide by order without fail and shall also further ensure surety of his good conduct to satisfaction of officer concerned lest officer concerned shall be at liberty to take necessary action for any breach that may be committed of undertaking - Petition has been dealt with by an ordinary law of land and case against him ordinary law of land is being dealt with and has been granted regular bail by court trial is still pending and shall be dealt with in accordance with law - Court to uphold version of detaining authority of terming him as a bootlegger whose activities causes serious threat to public health and order - This being a solitary offence and considering nature of allegations and also his involvement only once in past which also is not regarded by detaining authority in order impugned according to this Court.
Result: Petition allowed
JUDGMENT :
1. This petition is preferred challenging the order dated 23.12.2019 passed by respondent No.2 in exercise of powers under subsection (2) of section 3 of the Gujarat prevention of Antisocial activities Act, 1985(PASA Act). The detenue has been detained under the provisions of PASA Act at Rajkot Central Jail. He is aggrieved by such detention and therefore, has challenged the same in this petition under Article 226 of the Constitution of India Act.
2. It is alleged in the grounds of detention that the detenue is a bootlegger, as per section 2 (b) of the PASA Act and his activities are prejudicial to the maintenance of public order. It is also the grievance on the part of the petitioner that merely because he is allegedly involved under the Prohibition Act, he cannot be termed as bootlegger under the provisions of PASA Act, unless his activities as a bootlegger affect adversely in the maintenance of public order. The only offence, which has been alleged against him is the First Information Report in connection with CR.No.III-672 of 2019 registered with Puna police station on 11.11.2019 for the offences punishable under section 65(e)(a), 98 (2), 116B of the Gujarat Prohibition act.
3. It is the say of the petitioner that the solitary offence alleged against him under the Gujarat Prohibition Act could not include circumstances, prejudicial to the maintenance of public order. The petitioner is seriously prejudiced by the action of the respondent authority, which deserves indulgence. It is further the say of the petitioner that the detenue was ordered to be released on regular bail and there is nothing to indicate that he continued to carry on so called antisocial activities thereafter. The subjective satisfaction of the detaining authority, according to the petitioner, is vitiated and therefore, the authority has wrongly considered section 57(c)of the Gujarat police Act so also under section 93 of the Gujarat Prohibition Act and failed to take into consideration less drastic remedy. It is the say of the petitioner that detention is in violation of basic requirement of PASA Act, as the order is passed in a stereotyped manner.
3. Petitioner has therefore sought following prayers at paragraph No.6 of this petition which are as under:-
“A. Quash and set aside the detention order bearing number PCB/PASA/DTN/412 of 2019 dated 23 December 2019 further be pleased to release the detenue forthwith, and
B. Pending admission and final disposal of this petition, the Hon'ble court may further be pleased to release the detenue from detention, and
C. grant any other relief or pass any other order, which the Honorable court may consider just and proper in the facts and circumstances of the case and in the interest of justice.
D. dispense with the filing of the affidavit of the petitioner as the petitioner in jail. And, for this act of kindness and justice, the petitioner as in duty-bound shall forever pray.”
4. On 18.5.2020 which was the first day of hearing, this Court issued Rule making it returnable on 21.5.2020 and learned AGP appeared for and on behalf of the respondent-State.
5. This Court has heard the learned advocate Mr Mehul Surti for the petitioner who has fervently urged that there is a solitary offence against the Petitioner and that too, under the Gujarat Prohibition Act and therefore, by no stretch of imagination the case of the petitioner can fall under the provisions of PASA Act. He has relied on various decisions of this court and of the Apex court to bring home his point that this is nothing but a sheer misuse of provisions of PASA Act and also has further requested the court to urgently set him free.
6. Learned AGP, Ms.Vyas has also strenuously urged before this Court that it is not a solitary offence which should be the sole criteria for the Court to quash the petition and quash the order of detention as the total number of bottles seized from the petitioner would be a vital consideration and moreover, when it is a prohibition
