SURESH JIVRAJBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD the learned advocates 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 12. 8. 2009 passed by the respondent No. 2-District Magistrate, Jamnagar 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 detenu has been detained as a "bootlegger". In pursuance to the said order, the detenu is detained in District Jail, Surat.

(3.) FROM the grounds of detention, it appears that only one offence being CR No. 674 of 2009 under the provisions of Sections 66b, 65e and 81 of the Bombay Prohibition Act has been registered against the detenu with Jamnagar City "a" Division Police Station wherein a quantity of total Indian made foreign liquor of 50 bottles were found in possession of the petitioner. On the basis of the registration of this case, the detaining held that the present detenu was carrying on activities of selling country made 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 carryong on further illegal activities, i. e. selling liquor. The detaining authority has placed reliance on the above registered offence 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.