RAJUBHAI CHANDRAKUMAR BHOJWANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition has been filed under Article 226 of the Constitution of India by the petitioner challenging the order of detention dated 11.06.2010 passed by respondent No.2 Commissioner of Police, Ahmedabad City in exercise of powers under Sub-Section 2 of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as 'the Act'), whereby the petitioner has been detained as bootlegger for indulging in activities of transporting and selling the illicit liquor as stated in detail in the grounds of detention dated 11.06.2010.

(2.) Learned Counsel Mr. H.R.Prajapati for the petitioner referred to the grounds of detention supplied with the order of the detention and submitted that it is a case of single solitary incident for which Prohibition Case being C.R.No. 5118 of 2010 has been registered with Naroda Police Station against the petitioner for the alleged offence under Sections 66(B), 65(A)(E), 81, 116, 1(B) of the Bombay Prohibition Act. Learned Counsel for the petitioner submitted that it is a settled legal position that merely for registration of single solitary offence, no order of detention under the Act could have been passed as the petitioner cannot be branded as bootlegger without any antecedent. He further submitted referring to the grounds of detention that it is also stated with regard to the activities, and on the basis of this, the order of detention has been passed by respondent No.2. The learned Counsel Mr. Prajapati further submitted that the activities of the petitioner cannot be said to be prejudicial or injurious to the public health or the public order. He referred to the provisions of the Act and submitted that the impugned order is not supported by the material and therefore deserves to be quashed and set aside.

(3.) Learned AGP Ms. Mini Nair has referred to the affidavit-in-reply and pointly referred to the grounds of detention supplied to the petitioner along with the order of detention and submitted that the petitioner was indulging in the activity of transporting and selling of illicit liquor in the State which is prohibited. She emphasized the provisions of the Act and submitted that the case of the petitioner would be covered under the definition of 'bootlegger' as envisaged under Section 2(b) of the Act. She also referred to the activities indulging by the petitioner to suggest as to how it could be said to be prejudicial to the public interest and also public order. For supporting the submission, the learned AGP has referred to the affidavit-in-reply filed by the respondent No.2 and emphasized that subjective satisfaction has been arrived at by the Authority as stated in the affidavit and it has been specifically stated that, 'after subjectively satisfying that the anti-social and bootlegging activities of the detenu cannot be curbed or prevented immediately by resorting to less drastic remedy of taking action under the ordinary law, as a preventive measure, the order of detention has been passed under the PASA Act'. The learned AGP, therefore, submitted that all the aspects have been considered. The learned AGP further submitted that even though no other offence is established against the petitioner, his activities are required to be considered based on the material and it cannot be said that it would not cause prejudice to the public health. Learned AGP submitted that the State is having a Prohibition Law and the bootlegging activities have the potential to disturb the maintenance of public order and it may also adversely affect the public health and therefore it cannot be said that the order of detention is passed without considering all the relevant material and the subjective satisfaction is arrived at by the Authority after considering the material. The learned AGP, therefore, submitted that even though the quantity seized from the petitioner may be small and there may be a single solitary incident as sought to be canvassed, it will have to be considered in light of the provisions of the Act coupled with the fact that the State is having prohibition and therefore considering the fact and the provisions of the Act, present petition may not be entertained. The learned AGP further submitted that as stated in the affidavit there are sufficient cogent material on record of the case so as to indicate the indulgence of the petitioner in the anti-social and bootlegging activities which have the potential to disturb the maintenance of public order. The learned AGP, therefore, submitted that present petition may not be entertained. Learned AGP has also referred to and relied upon the judgment of the Apex Court KANUJI S ZALA v. STATE OF GUJARAT, 1999 2 GLH 415 and emphasizing on para 5 submitted that the judgment in case of Piyush Mehta, 1989 AIR(SC) 491 has been considered in this judgment and it is also stated that it referred to the facts of the case. Learned AGP, therefore, submitted that what is required to be considered by the Court is whether the subjective satisfaction has been arrived at on the basis of the material or not. The learned AGP has also referred to and relied upon the judgment of the Hon'ble the Apex Court STATE OF MAHARASHTRA v. NAGPUR DISTILLERS, NAGPUR, 2006 AIR(SC) 1987 The learned AGP therefore submitted that the petition may not be entertained.