MAHMADSABIR NOORMAHMAD SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

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

(2.) THE father of 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 12. 3. 2008 passed by the respondent No. 2-Commissioner of Police, Ahmedabad City, in exercise of power under sub-section (2) of Section (3) of the Gujarat Prevention of Anti Social Activities Act, 1985 ("pasa Act" for short) whereby the detenue has been detained as an "anti-social element". In pursuance of the said impugned order, the detenue is detained in District Jail, Junagadh.

(3.) FROM the grounds of detention, it appears that only one offence being I-CR No. 61 of 2008 under the provisions of Sections 379 and 114 of IPC; Sections 3, 7 and 8 of Animal Protection Act read with Section 11 (D) of Animal Encroachment Act; and Sections 335 and 336 of BPMCK was registered with Vatva Police Station, wherein a quantity of 250 kg. Beef 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 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 detenu from carrying out further illegal activities, i. e. selling of liquor. The detaining authority has placed reliance on the above registered offences 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 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.