MAHENDRASINH DHANSINH RATHOD Vs. STATE OF GUJARAT

JUDGEMENT

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

(2.) The petitioner-detenue 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 10.11.2009 passed by the respondent No.2-Commissioner of Police, Ahmedabad 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 petitioner has been detained as a "bootlegger". In pursuance of the said impugned order, initially, the petitioner was detained in jail, Rajpipla on 11.11.2009.

(3.) Along with the detention order, the petitioner detenue has been supplied with the grounds of detention. From the grounds of detention, it appears that solitary offence being Prohibition CR No.5024 of 2009 has been registered against the detenue. The said offence has been registered with DCB Police Station City under the provisions of Sections 66-1B, 65AE and 116B of the Bombay Prohibition Act, wherein total quantity of 118 bottles of foreign liquor and 96 ton bear were 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.