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2024 Supreme(Guj) 878
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, SAMIR J. DAVE, JJ.
Jitendra @ Jitu Banto Sampatsinh Bariya (Chauhan) Through His Brother Dharmendra s. Chauhan – appellant
Versus
State Of Gujarat & Ors. – Respondent
R/Special Civil Application No.17106 of 2023
Decided on : 01-03-2024
Advocate Appeared:
For the Appellant : MR HITESH P PRAJAPATI, MR.KISHAN PRAJAPATI
For the Respondent: MR ROHAN RAVAL,
IMPORTANT POINT
The activities of a 'bootlegger' must affect adversely or be likely to affect adversely the maintenance of public order to justify preventive detention under the PASA Act.
Headnote:
PASA Act - Challenge to Detention Order - Section 3 - [65(A), 81, 98(2), 116] - The court discussed the definition of 'bootlegger' under Section 2(b) of the PASA Act and the power to make orders detaining certain persons under Section 3. It also referred to a Supreme Court decision on the distinction between 'law and order' and 'public order'. The court found that the detaining authority failed to substantiate that the alleged antisocial activities of the petitioner-detenue adversely affect or are likely to affect adversely the maintenance of public order.
Fact of the Case:
The petitioner challenged the order of detention passed by the Commissioner of Police, Vadodara City, under the PASA Act, claiming to be detained as a 'bootlegger' based on a case registered under the Prohibition Act.
Finding of the Court:
The court found that the detaining authority failed to substantiate that the alleged antisocial activities of the petitioner-detenue adversely affect or are likely to affect adversely the maintenance of public order.
Issues: Challenge to detention order under the PASA Act, interpretation of 'bootlegger' under Section 2(b), and the distinction between 'law and order' and 'public order'.
Ratio Decidendi: The activities of the petitioner as a 'bootlegger' must affect adversely or be likely to affect adversely the maintenance of public order to justify preventive detention under the PASA Act.
Final Decision: The petition succeeds, and the order of detention is quashed, ordering the detenue to be set at liberty forthwith if not required in any other case.
JUDGMENT :
SAMIR J. DAVE, J.
1. By way of this petition, the petitioner-detenue has challenged the order of detention dated 22.09.2023 passed by the Commissioner of Police, Vadodara 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 has also prayed for an order to set him free from detention.
2. This Court has taken note of the fact that the petitioner has been detained as a 'bootlegger'. It also appears that in the grounds of detention order dated 22.09.2023, the detaining authority has relied upon one case registered with Varsiya Police Station vide C.R. No.11196038230325 of 2023 for the offence punishable under Sections 65(A) (E), 81, 98(2) and 116 of the Prohibition Act.
3. 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.”
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 sub-section, 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."
4. In this connection, this Court may refer to a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], where the distinction between 'law and order' and 'public order' has been clearly laid down.
