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2024 Supreme(Guj) 1079
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, Samir J. Dave, JJ.
Chehrabhai @ Cheharbhai S/o Maganbhai Desai Through – Petitioner
Versus
State of Gujarat & Ors. – Respondent
R/Special Civil Application No. 19568 of 2023
Decided On : 04-03-2024
Advocate Appeared:
For the Petitioner: Mr Gajendra P Baghel, Mr Shambhukumar
For the Respondent: Mr Rohan Raval, AGP
Preventive detention under the PASA Act requires proof that the detainee's activities adversely affect public order, not merely the status of being a bootlegger.
Headnote:(A) Gujarat Prevention of Antisocial Activities Act, 1985 - Sections 2(b) and 3 - Detention of a bootlegger - The court found that mere registration of a case under the Prohibition Act does not substantiate a threat to public order - The detaining authority failed to prove that the petitioner's activities adversely affected public order. (Paras 1, 5, 6)
(B) Public Order - Distinction between law and order and public order - The court reiterated that not every infraction of law constitutes a threat to public order; it must affect the community at large. (Para 4)
Facts of the case:
The petitioner challenged his detention as a bootlegger under the PASA Act, arguing that the grounds for detention did not demonstrate a threat to public order.
Findings of Court:
The court held that the detention order was not justified as the activities of the petitioner did not adversely affect public order.
Issues: Whether the activities of the petitioner as a bootlegger constituted a threat to public order.
Ratio Decidendi: The court concluded that the mere status of being a bootlegger does not warrant preventive detention unless it can be shown that such activities affect public order.
Result: Petition allowed; detention order quashed.
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, 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 23.09.2023, the detaining authority has relied upon one case registered with Sarthana Police Station vide C.R. No. 11210008231041 for the offence punishable under Sections 65(E), 81, 98(2) of the Prohibition Act and under sections 465, 468, 471 of the IPC.
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
