SALAM ABDUL HANIFSHAIBHAI Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) The petitioner-detenu has, through his wife, invoked Articles 21, 22 and 226 of the Constitution with a prayer to set aside the order dated 20.12.2006 by which he was ordered to be detained under the provisions of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, "PASA"). According to the grounds of detention furnished to the petitioner, he is alleged to have indulged in bootlegging and five cases of offences punishable under the Prohibition Act have been registered against him. Out of those five cases, he is stated to have been arrested and released on bail in three cases while he was wanted in two cases. In the first case registered at Kamrej Police Station vide III-C.R. No. 261 of 2006, he is alleged to be the owner of 780 bottles of liquor of different brands which were caught while being transported on 26.6.2006. When the petitioner was arrested on 8.10.2006 pursuant to that case, he is stated to have admitted his guilt in his statement before police. In two other cases registered at Palsana Police Station vide III-C.R. Nos. 889 and 890 of 2006, he was caught in connection with transportation of 4210 and 1254 bottles of liquor. In another case registered with Palsana Police Station vide III-C.R. No. 1057 of 2006, 6388 bottles of liquor which were to be supplied to the petitioner were caught and he is stated to have escaped while he was piloting the vehicle carrying that stock of liquor. In the fifth case registered as III-C.R. No. 740 of 2006 in Kamrej Police Station, he is stated to have escaped from the premises raided by the police where 191 boxes containing 6792 bottles of "Indian made foreign liquor" ("IMFL" for short) were stored. On the basis of those facts, the petitioner was found to be a "bootlegger" within the meaning and definition of Section 2 (b) of PASA and, as stated in the impugned order, activities of the petitioner were likely to adversely affect living conditions and health of the people. Therefore, impugned order to prevent him from acting in a manner prejudicial to maintenance of public order was stated to have been made.

(2.) The petitioner has challenged the impugned order mainly on the grounds that his alleged activities were required to be dealt with under ordinary law as they did not and could not affect public order. Although he was alleged to be absconding in connection with two criminal cases, no notification or order under the Code of Criminal Procedure, 1973 was issued in that regard and the State had not applied for cancellation of his bail. It is averred that the sponsoring authority has not recorded any statement of any witness which could establish that the activities of the detenu were prejudicial to maintenance of public order. It is submitted that the petitioner could not be termed as "bootlegger" or "habitual offender" and that there was unexplained delay in making of the impugned order. It was pointed out by learned Counsel Mr.A.S.Dave, appearing for the petitioner with Ms.K.M.Shah, that the detenu was released on bail despite the successive cases of alleged offences and there was no material before the sponsoring authority to infer that the detenu was absconding at the relevant time. Out of the five cases mentioned in the grounds of detention, first three cases were registered before September 2006 and could not form the basis for the order made in December 2006, according to the submission. It was further submitted that the authorities could have resorted to simple and expeditious remedy of cancellation of bail granted to the petitioner. Llearned Counsel also submitted that there was no material to suggest consumption of liquor by anyone or any harm or injury or likelihood of any harm to health of anyone. The so-called IMFL was not shown to be harmful to public health or to be posing a grave danger to public health, according to the submission.

(3.) Relying upon affidavit of the detaining authority, it was submitted on behalf of the respondent that the proposal and materials received from the sponsoring authority for detention of the petitioner were carefully scrutinized, examined and considered and were found to be sufficient for detaining the petitioner. The grounds of detention were true, correct, clear and proper. After carefully examining the papers pertaining to the five cases registered against the petitioner and after applying mind to the facts of the case, the detaining authority had come to the conclusion that the petitioner was in illegal liquor business and was disturbing public order, public peace and public health and was likely to continue his anti-social and bootlegging activities which may cause grave or widespread danger to life, property and public health. Therefore, after arriving at subjective satisfaction to the effect that anti-social and bootlegging activities of the petitioner could not be curbed or prevented immediately by resorting to less drastic remedy of taking action under the ordinary law, as a preventive measure, the impugned order was passed with a view to immediately prevent the petitioner from continuing such illegal, anti-social and bootlegging activities. The impugned order is stated to have been passed after full application of mind and in compliance with the provisions of PASA as well as the Constitution of India. It is stated that all relevant material and vital documents which had a bearing and which were available were placed before the authority and copies of all such documents which were considered and relied upon for passing the order of detention were supplied to the petitioner along with the grounds of detention. 3.1 As for the petitioner not being declared to be an absconding accused person in connection with III-C.R. No. 1057 of 2006 and III-C.R.No. 740 of 2006, it is stated on behalf of the respondent that, in spite of best efforts on the part of the police, the petitioner could not be arrested and action was already taken to declare him an absconder. It is submitted that there was sufficient cogent and credible material on record which clearly indicated indulgence of the petitioner in anti-social activities having the potential of affecting public health and disturbing public order. It is also stated that, after registration of the offence on 8.12.2006 against the petitioner and as he was absconding, the sponsoring authority had collected necessary material and information with regard to his anti-social activities and submitted a proposal dated 19.12.2006 and, after considering the material, facts and circumstances of the case as well as applicable legal provisions, the detaining authority was subjectively satisfied that the petitioner was a bootlegger and his anti-social activities had the potential of disturbing public order. Therefore, in short, the impugned order dated 20.12.2006 was neither delayed nor without application of mind. 3.2 Learned A.G.P. contended that the activity of bootlegging was per se posing danger to public health insofar as the dealing in liquor or any alcoholic drink was prohibited in the State by legislation, namely, the Prohibition Act, 1949, and any supply of alcohol in violation of that law could only result into clandestine consumption thereof which, in turn, was injurious to health and likely to cause widespread danger to public health and public order when dealt in large quantities.