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2019 DIGILAW 222 (GUJ)

Jagubhai Valabhai Vala v. State of Gujarat

2019-03-13

ANANT S.DAVE, BIREN VAISHNAV

body2019
JUDGMENT : Anant S. Dave, J. 1. The challenge in this appeal under Clause 15 of the Letters Patent is oral judgment dated 29.10.2018 passed in Special Civil Application No. 12014 of 2018 passed by the learned single Judge, wherein, the challenge to order of detention dated 16.07.2018 passed by respondent No. 2, District Magistrate, Bhavnagar, detaining the petitioner in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, ('the PASAACT') branding the petitioner as 'Bootlegger' as defined under Section 2(b) of the very Act, came to be negatived by confirming the order of detention. 2. According to learned single Judge, the detaining authority while arriving at subjective satisfaction has taken into consideration all relevant material and limited scope of a writ court in interfering with such a decision making process of detaining authority the activities of the detenue were found to be prejudicial to public interest and that in view of registration of about 5 FIRs under the Prohibition Act, he was termed as a habitual offender and even submissions recorded of witnesses reveal that the petitioner detenue was not an innocent person and was actively participating in commission of crime by supplying huge quantity of liquor. The fact about pendency of criminal cases and filing of charge sheet was borne out from the record and accordingly order of detention was confirmed. 3. Mr. Bhavin Raiyani, learned advocate for the petitioner would contend that so far as registration of FIRs are concerned, in one of such criminal case registered against the petitioner for offence under Sections 66(B), 65(E), 116 (2)(b) and 81 of the Prohibition Act, the learned Judicial Magistrate, Bhesan, vide judgment dated 06.07.2018 acquitted the petitioner while the order of detention was passed on 16.07.2018 and the above fact was not noticed, and therefore, the decision making process arriving at the activities of the petitioner prejudicial to the public interest and therefore also disturbing public order ought to have been considered by the learned single Judge as fatal to the case of detaining authority. 3.1. 3.1. It is submitted that considering the distinction between the law and order and public order as held in the case of Ram Manohar Lohia v. State of Bihar & Ors., reported in ( (1966) 1 SCR 709 : AIR 1996 SC 740 ), public order has wider connotation then that of breach of law and order and even if the definition of Section 2(b) of the PASA Act is considered of 'Bootlegger', it cannot be said that the petitioner was a habitual offender and even at the stage of filing of a writ of pre-detention it was emerging that no material was available to detain the petitioner and within no time the order of detention was passed by relying on same materials, not germane to passing of the detention order. 3.2. Reliance is placed on a decision in the case of Dharamdas Samlal Agarwal v. Police Commissioner & Anr., reported in (1989) 2 SCC 370 : ( AIR 1989 SC 1282 ), and order judgment dated 03.09.2014 passed by this Court in Special Civil Application No. 5990 of 2014, wherein, the learned single Judge relied on case of Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, Commissioner of Police & Ors., reported in 1995 (2) GLR 1268 : (AIR Online 1995 SC 102), about breach of public order viz-a-viz law and order and another decision of a Division Bench dated 22.08.2014 passed in Letters Patent Appeal No. 905 of 2014, wherein again the above decision of Mustakmiya Jabbarmiya Shaikh (supra) was referred to. 3.3. It is therefore submitted that order of detention is to be quashed and set aside so as the oral judgment confirming such order of detention by the learned single Judge also deserves to be quashed and set aside by allowing the appeal. 4. Ms. Nisha Thakore, learned Assistant Government Pleader, however would defend the order passed by the defending authority and so confirmed by the learned single Judge on the ground that in spite of the action taken by the appropriate authority to curtail bootlegging activities of the petitioner-detenue and registration of five FIRs, genuine apprehension of the authority that the detenue would continue to indulge in similar such activities in future also, hence the powers are exercised under Section 3 of the PAS A Act. Besides, fact remain on record about registration of five FERs under Prohibition Act, wherein the detenue was supplier of illicit liquor. Besides, fact remain on record about registration of five FERs under Prohibition Act, wherein the detenue was supplier of illicit liquor. 4.1. It is submitted that in the case like this, there is all likelihood of breach of public order when criminal activity of bootlegging continuous repeatedly. By taking us to the record of appeal, it is submitted that alternative steps undertaken by the authority of curtailing or preventing bootlegging by the petitioner without fault and as a last recourse, he is detained in exercise of powers under Section 3 of the PASA Act, and therefore, no interference is called for. 5. Having regard to the facts and circumstances of the case and considering submissions made hereinabove in the context of challenge to the oral judgment passed by the learned single Judge, we may at the outset, refer the distinction drawn between the law and order and public order, and the Apex Court as early as in 1996 in the case of Ram Manohar Lohia (supra), held as under: "... Does the expression "pubic order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the power to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances." 6. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances." 6. The very concept is reiterated by the Courts including this Court, for which the learned single Judge extensively referred to the decision in the oral judgment dated 03.07.2014 in Special Civil Application No. 5990 of 2014 of which paragraph 9 is quoted from the decision of Mustakmiya Jabbarmiya Shaikh (supra), read as under: "9. In reply to the argument advanced by learned AGP, learned advocate for the petitioner would submit that the decision of Mustakmiya Jabbarmiya Shaikh (supra) was not brought to the notice of the learned single Judge (Coram : Hon'ble Mr. Justice S.G. Shah) as well as before the Division Bench (Coram: Hon'ble Mr. Justice V.M. Sahai and Hon'ble Mr. Justice R.P. Dholana), and therefore, the order of detention has not been quashed and set aside. By placing a copy of judgment and order dated 04.08.2014 passed in Special Civil Application No. 4844 of 2014 by the learned single Judge (Coram : Hon'ble Mr. Justice S.G. Shah), learned advocate would further submit that the learned single Judge, by relying upon different decisions of this Court as well as of the Apex Court including decision of Mustakmiya Jabbarmiya Shaikh (supra), has held that only on the ground of lodging FIR under the provision of the Arms Act, the authority would not entitle to detain the person under the provision of the Arms Act labeling him as a 'dangerous person'. By relying upon another subsequent decision of the Division Bench of this Court (Coram : Hon'ble Mr. Justice V.M. Sahai and Hon'ble Mr. Justice R.P. Dholaria) dated 27.08.2014 passed in Letters Patent Appeal No. 920 of 2014, learned advocate for the petitioner would further submit that the Division Bench has opined that only registering the offence under the provision of Arms Act or under the provisions of Chapter XVI or Chapter XVII of the IPC, no sufficient reason arisen to label the person as dangerous person, and therefore, the detention order confirmed by the learned single Judge came to be quashed and set aside." (Emphasis supplied) 7. In our view simply because 5 different FIRs were registered for the offences under Prohibition Act, it cannot be said that apprehension of breach of public order by the authority was justified in absence of any material appearing in this regard, and on this ground alone at this stage, we are inclined to allow this appeal by quashing and setting aside the order of detention dated 16.07.2018 passed by respondent No. 2, District Magistrate, Bhavnagar as confirmed by the learned single Judge vide oral judgment dated 29.10.2018 passed in Special Civil Application No. 12014 of 2018. Order accordingly. The detenue is ordered to be set at liberty if not required in any other offence forthwith. Direct service is permitted.