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2024 Supreme(Guj) 896
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, SAMIR J. DAVE, JJ.
Javed @ Javed Saiyed @ Javid S/O Siraj Shaikh Through His Brother shaikh shahrukh S/o. Siraj – Appellant
Versus
Commissioner Of Police & Ors. – Respondents
R/Special Civil Application No. 17709 of 2023
Decided on : 07-03-2024
Advocate Appeared:
For the Appellant : MR M I SHAIKH, MR MOHDDANISH M BAREJIA
For the Respondent: MR ROHAN RAVAL
IMPORTANT POINT
The detaining authority must substantiate that the alleged activities adversely affect or are 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 - Summary: 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. The court emphasized that the detaining authority must substantiate that the alleged antisocial activities adversely affect or are likely to affect adversely the maintenance of public order. The court referred to legal provisions and case law to conclude that the mere registration of a case under the Prohibition Act does not by itself have any bearing on the maintenance of public order.
Fact of the Case:
The petitioner challenged the order of detention passed under the PASA Act, contending that the detaining authority failed to establish that the alleged activities adversely affect public order.
Finding of the Court:
The court found that the detaining authority failed to substantiate that the petitioner's activities as a 'bootlegger' affected or were likely to affect adversely the maintenance of public order.
Issues: The key issue was whether the detention order was justified based on the alleged antisocial activities of the petitioner.
Ratio Decidendi: The court emphasized that the detaining authority must establish that the alleged activities adversely affect or are likely to affect adversely the maintenance of public order, and mere registration of a case under the Prohibition Act does not automatically warrant preventive detention under the PASA Act.
Final Decision: The petition succeeded, and the order of detention was 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 24.09.2023 passed by the Commissioner of Police, Surat 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 19.09.2023, the detaining authority has relied upon one case registered with Saroli Police Station vide C.R. No.11210067230391 for the offence punishable under Sections 65(E), 98(2), 81, 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. The Court has also taken in to consideration the fact that the petitioner was arrested on 19.08.2023 and released on bail on 23.09.2023 and thereafter, the order of detention was passed on 24.09.2023 and therefore, the order of detention is passed on the ve
