JIVRAJSING @ BHAYJI MANGUSING SHEKHAVAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD the learned advocate for the petitioner and the 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 2.2.2008 passed by the respondent No.1 -the 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 petitioner has been detained as a 'bootlegger'. In pursuance of the said impugned order, the petitioner is detained in District Jail, Bhavnagar.

(3.) FROM the grounds of detention, it appears that there are four offences being Prohibition CR Nos.5054 of 2007, 5170 of 2007, 5331 of 2007 and 5004 of 2007 have been registered against the detenu. Out of the four offences, the first offence is registered with Bapunagar Police Station and the rest of the offences are registered with Naroda Police Station. The offences are registered under the provisions of Sections 66B, 65E, 66.1B, 81, and 116B, under the Bombay Prohibition Act, wherein a quantity of total 58 bottles of Foreign Liquor were found from the possession of the detenue. On the basis of registration of these cases, 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 her 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.