IMPORTANT POINT
The registration of a solitary offence under the Prohibition Act by itself cannot justify preventive detention unless the activities of the detenue affect the maintenance of public order.

JUDGMENT :

A.Y. KOGJE, J.

1. This petition under Article 226 of the Constitution of India is filed for following relief:-

“B) That this Hon’ble Court may be pleased to allow this present Special Civil Application by issuing writ of habeas corpus or any other appropriate writ, order or direction quashing and setting aside the impugned order of detention Anx-A dated 28.09.2023 passed by respondent no.2.”

2. Thus, essentially, the challenge is to the order of detention dated 28.09.2023 passed by the Police Commissioner, Surat, respondent No.2 herein, by which the petitioner has been detained as a “bootlegger” based on solitary offence registered against him.

3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground of registration of the solitary offence under Sections of the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) of the Act. Further, learned Advocate for the detenue submits that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order. Further, except statement of witnesses, registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order.

3.1 Learned advocate for the petitioner further submits that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to solitary criminal case had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large.

4. Learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(b) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court.

5. Having heard learned advocates for the parties and considering the facts and circumstances of the case, it appears that the grounds of detention indicate registration of solitary FIR, the details of which are as under:-

6. The order of detention came to be passed on 28.09.2023. The State could have resorted to due process of law by filing cancellation of bail application and that would have been sufficient to prevent the petitioner from indulging in further offence, particularly when the petitioner has been granted bail in connection with the offence on which the detaining authority has relied upon to arrive at a subjective satisfaction. The fact that the petitioner has been enlarged on regular bail by the Court of competent jurisdiction and the detention order does not reflect application of mind to the fact that the Detaining Authority has considered cancellation of bail to be ineffective method to curtail activities of the petitioner. Therefore, in the opinion of the Court, the Detaining Authority not having taken into consideration the cancellation of bail option. The subjective satisfaction would stand vitiated as is held in recent decision of the Hon’ble Supreme Court in the case of Shaik Nazeen v/s. State of Telanga and Ors. reported in 2023 (9) SCC 633, the Hon’ble Supreme Court has made following observations in para 19 as under:-

“19. In any case, the State is not without a remedy, as in case the detenue is much a menace to the society as is bein