NILESHBHAI THAKORBHAI PATEL Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) Heard learned advocate for the petitioner and learned AGP for the respondents.

(2.) The petitioner-detenue through his brother has preferred this petition under Article 226 of the Constitution of India, for appropriate writ, order or direction for quashing and setting aside the impugned order dated 20.02.2010 passed by the respondent No.1-District Magistrate, Surat City in exercise of power under sub-section (1) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 ('PASA Act' for short) whereby the detenue has been detained as a 'bootlegger'. In pursuance of the said impugned order, the detenue is detained in jail, Rajkot on 23.02.2010.

(3.) Along with the detention order, the detenue has been supplied with the grounds of detention. From the grounds of detention, it appears that one solitary offence being Prohibition III CR No.1463 of 2009 has been registered against the detenue. The said offence has been registered with Olpad Police Station, Surat City under the provisions of Sections 66(1)B, 65E, and 81 of the Bombay Prohibition Act, wherein total quantity of 1000 liter of country made liquor was found from the possession of the detenue. On the basis of registration of this case, the detaining authority held that the present detenue was carrying on activities of selling country made liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenue is indulged in illegal activities, it is required to restrain the detenue from carrying out further illegal activities, i.e. selling of liquor. The detaining authority has placed reliance on the above registered offence and statements of unnamed witnesses. In the opinion of this Court, the activities of the detenue can, by no stretch of imagination, be said to be disturbing the 'public order.' It is seen from the grounds of detention that a general statement that has been made by the detaining authority that consuming liquor is injurious to health. In fact, a perusal of the order passed by the detaining authority shows that the grounds which are mentioned in the order are in reference to the situation of 'law and order' and not 'public order'. Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.