VIRJIBHAI @ BUCHIYO JASMATBHAIKOLI Vs. STATE OF GUJARAT

JUDGEMENT

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

(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 20.1.2008 passed by the respondent No.2 -District Magistrate, Bhavnagar, 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 Jamnagar District Jail, Jamnagar.

(3.) FROM the grounds of detention, it appears that offences being CR No.28 of 2005 under the provisions of Sections 66B, 65A,E and 81 under the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, CR No.83 of 2005 under the provisions of Sections 66B, 65A,E and 116 under the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, CR No.394 of 2005 under the provisions of Sections 66B, 65AE, 116, 81, 98, 99 under the Bombay Prohibition Act, registered with Prohibition Police Station, Limbdi, Surendranagar, CR No.38 of 2006 under the provisions of Secs.66B, 65AE and 81 of the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, CR No.40 of 2006 under the provisions of Secs.66B, 65AE, 116B, 81 of the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, CR No.42 of 2006 under the provisions of Secs.66B, 65AE, 81, 116B of the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, CR No.43 of 2006 under the provisions of Secs.66B, 65AE, 81 of the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, CR No.44 of 2006 under the provisions of Secs.66B, 65AE, 116B, 81 of the Bombay Prohibition Act, registered with Gadhda Police Station, Bhavnagar, wherein a total quantity of 8600 foreign liquor bottles, 276 bottles of beer, one TATA 307, one mobile, 75 sacks containing coconuts were 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 foreign made 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 him 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.