RAFIQ MUSABHAI JAFARANI Vs. STATE OF GUJARAT

JUDGEMENT

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

(2.) THE petitioner-detenu 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 3. 8. 2009 passed by the respondent No. 2-Police Commissioner, Rajkot City, in exercise of power under sub-section (2) of Section (3) of the Gujarat Prevention of Anti Social Activities Act, 1985 ("pasa" for short) whereby the petitioner has been detained as a "bootlegger". In pursuance to the said impugned order, the petitioner is detained in Godhra Jail.

(3.) FROM the grounds of detention, it appears that three offences being prohibition CR Nos. 83 of 2008, 118 of 2009 and 148 of 2009 have been registered against the petitioner-detenu at Pradyumnanagar Police Station, Rajkot City under the provisions of Sections 66 (1) (B), 65ae, 116 and 81 of the Bombay Prohibition Act, wherein a a total quantity of 179 bottles of different brands of foreign liquor were found from the possession of the petitioner. On the basis of the registration of these cases, the detaining authority held that the present detenu 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 detenu 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 detenu 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.