HAIDERKHAN WAHIDKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By the present petition under Article 226 of the Constitution, petitioner has sought the relief of order dated 10.1.2007 of his detention being set aside. That impugned order dated 10.1.2007 is issued by Police Commissioner, Vadodara in exercise of his powers conferred under the provisions of section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA" for short) on the basis that the petitioner was found to be repeatedly indulging in anti-social activity of bootlegging and an offence being III-C.R.No.689 of 2006 under the Prohibition Act was registered on 25.12.2006 against the petitioner in Panigate Police Station of Vadodara. According to the grounds of detention supplied with the impugned order, even as the aforesaid offence was being investigated, other actions under the Prohibition Act were not possible and alcohol being injurious to health, there was likelihood of danger to public health on account of consumption of illicit liquor in which the petitioner was dealing. It is further stated that possibility of the petitioner continuing in anti-social activities could not be denied and hence it was found to be necessary to detain the petitioner after considering the documents and statements which were relied upon and supplied to the petitioner.

(2.) Even as the present petition was admitted on 22.3.2007 and Rule was made returnable on 10.5.2007 and an affidavit-in-reply of the detaining authority was ready and executed on 21.5.2007, it was submitted to this court and copy thereof supplied to the petitioner only on 21.8.2007 when the matter was taken up for final hearing. It is stated in that affidavit, inter alia, that prima facie involvement of the petitioner was established in the offence registered against him. It is further stated: "I say and submit that since the petitioner is doing bootlegging activities in a sequence, the petitioner has been detained under the provisions of section 2 (b) of PASA as "bootlegger", therefore, order of detention is legal, just and proper in the eye of law". While trying to argue on the basis of the said affidavit, learned A.P.P. Ms. M.D.Mehta stated that she did not have the relevant papers of either the impugned order or the grounds supplied to the detenu along with copies of other statements and supporting material running into 21 pages. If these were not enough to show total non-application of mind and casual approach of the respondent, even while the petition making grievance against violation of fundamental right of a citizen were admitted and pending in this court for last five months, it was further sought to be argued, without reading any of the relevant papers, that the petitioner was in fact a "bootlegger" who was consistently indulging in the activity of bootlegging in a sequence causing danger to public health.

(3.) As held by this court in Amarbhai Kanjibhai Nayak v. Commissioner of Police, Ahmedabad City & Ors. [1993 (3) G.L.R. 2703] and in Sohanlal Surajaram Visnoi v. State of Gujarat [2004 (2) G.L.R. 1051], solitary incident of violation of prohibition law, normally, without anything more, would not be a problem to the maintenance of public order and, for such solitary incident, no person can be detained under the Act. It was also seen from analysis of the provisions of sub-section (4) of section 3 and the Explanation appended thereto that the presumption of likelihood of public order being adversely affected could arise, if danger were caused to life or public health, but such danger has to be grave or widespread for the mandatory presumption of likelihood of public order being adversely affected. In the facts of the present case, nothing from the material on record could substantiate or justify the presumption of grave or widespread danger to life or public health and hence, the presumption of likelihood of public order being adversely affected could not have been legally availed by the detaining authority for the purpose of arriving at a subjective satisfaction. Even otherwise, the impugned order as well as the defence taken in the affidavit-in-reply clearly appeared to be without application of mind and can only be deprecated in view of its consequences.