YOGESHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India is directed against the order of preventive detention dated 14.07.2020 passed by the Commissioner of Police, Surat 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'. The aforesaid order came to be executed upon the petitioner on the very same day. The petitioner is thus detained under the said Act since then.

(2.) While passing the order of detention, it is reflected from the grounds of detention that the petitioner is involved in procuring illegally, without pass or permit, Indian made foreign liquor for the purpose of sale in the surrounding area of Surat city, as also of your companion in crime selling, transporting and for that, a case being Prohibition III-C.R.No.11212051200349 of 2020 under the Gujarat Prohibition Act came to be registered against the detenue with Surat Railway Police Station. For the purpose, it is stated that, there is an offence registered and going through the registered offence, the aforestated facts have been elicited by the Detaining Authority in the grounds of detention from the solitary FIR registered against the petitioner.

(3.) Mr. Vaibhav N. Sheth, learned advocate for the petitioner submitted that, even if, the registration of solitary offence under the Prohibition Act, may be sufficient to brand him as 'Bootlegger' as defined under Section 2(b) of the PASA, the petitioner detenue cannot be preventively detained unless it is shown that the activities of the petitioner is prejudicial to the maintenance of public order. He has further submitted that, in view of Sub-Section (4) of Section 3 of PASA, a deeming fiction is introduced that the person carrying on activities whether as Bootlegger or Gambling House Keeper or Dangerous Person or Drug Offender or Immoral Traffic Offender or Property Grabber which affects adversely or are likely to affect adversely the maintenance of public order. In other words, although sub-section (4) contains a deeming provision, such deeming provision will not be attracted unless the activities of the person concerned affect adversely or are likely to affect adversely the maintenance of public order. He has further submitted that even looking at the compilation along with the grounds of detention, which has been furnished to the detenue, it cannot be said that the registration of a solitary offence can affect adversely or is likely to affect adversely the maintenance of public order. Therefore, he has requested to quash and set aside the order of detention passed against the petitioner-detenue.