JUDGMENT : 1. This petition is preferred challenging the order dated 23.12.2019 passed by respondent No.2 in exercise of powers under subsection (2) of section 3 of the Gujarat prevention of Antisocial activities Act, 1985(PASA Act). The detenue has been detained under the provisions of PASA Act at Rajkot Central Jail. He is aggrieved by such detention and therefore, has challenged the same in this petition under Article 226 of the Constitution of India Act. 2. It is alleged in the grounds of detention that the detenue is a bootlegger, as per section 2 (b) of the PASA Act and his activities are prejudicial to the maintenance of public order. It is also the grievance on the part of the petitioner that merely because he is allegedly involved under the Prohibition Act, he cannot be termed as bootlegger under the provisions of PASA Act, unless his activities as a bootlegger affect adversely in the maintenance of public order. The only offence, which has been alleged against him is the First Information Report in connection with CR.No.III-672 of 2019 registered with Puna police station on 11.11.2019 for the offences punishable under section 65(e)(a), 98 (2), 116B of the Gujarat Prohibition act. 3. It is the say of the petitioner that the solitary offence alleged against him under the Gujarat Prohibition Act could not include circumstances, prejudicial to the maintenance of public order. The petitioner is seriously prejudiced by the action of the respondent authority, which deserves indulgence. It is further the say of the petitioner that the detenue was ordered to be released on regular bail and there is nothing to indicate that he continued to carry on so called antisocial activities thereafter. The subjective satisfaction of the detaining authority, according to the petitioner, is vitiated and therefore, the authority has wrongly considered section 57(c)of the Gujarat police Act so also under section 93 of the Gujarat Prohibition Act and failed to take into consideration less drastic remedy. It is the say of the petitioner that detention is in violation of basic requirement of PASA Act, as the order is passed in a stereotyped manner. 3. It is the say of the petitioner that detention is in violation of basic requirement of PASA Act, as the order is passed in a stereotyped manner. 3. Petitioner has therefore sought following prayers at paragraph No.6 of this petition which are as under:- “A. Quash and set aside the detention order bearing number PCB/PASA/DTN/412 of 2019 dated 23 December 2019 further be pleased to release the detenue forthwith, and B. Pending admission and final disposal of this petition, the Hon'ble court may further be pleased to release the detenue from detention, and C. grant any other relief or pass any other order, which the Honorable court may consider just and proper in the facts and circumstances of the case and in the interest of justice. D. dispense with the filing of the affidavit of the petitioner as the petitioner in jail. And, for this act of kindness and justice, the petitioner as in duty-bound shall forever pray.” 4. On 18.5.2020 which was the first day of hearing, this Court issued Rule making it returnable on 21.5.2020 and learned AGP appeared for and on behalf of the respondent-State. 5. This Court has heard the learned advocate Mr Mehul Surti for the petitioner who has fervently urged that there is a solitary offence against the Petitioner and that too, under the Gujarat Prohibition Act and therefore, by no stretch of imagination the case of the petitioner can fall under the provisions of PASA Act. He has relied on various decisions of this court and of the Apex court to bring home his point that this is nothing but a sheer misuse of provisions of PASA Act and also has further requested the court to urgently set him free. 6. Learned AGP, Ms.Vyas has also strenuously urged before this Court that it is not a solitary offence which should be the sole criteria for the Court to quash the petition and quash the order of detention as the total number of bottles seized from the petitioner would be a vital consideration and moreover, when it is a prohibition policy which the State follows, there should be no leniency towards anyone who impudently breaches the law. He has other antecedents, which could not find mention in the order which is impugned in this petition. 7. He has other antecedents, which could not find mention in the order which is impugned in this petition. 7. On duly considering the submissions of both the sides and also the order impugned so also the material which has been placed on the record, it appears that there is a solitary offence which has been considered by the detaining authority to implement the provisions of PASA against the present petitioner. He is termed as a “bootlegger” for having had huge quantity of liquor for sale although the state follows prohibition policy. It emerges from the record that in the past he possibly had other offences. There appears to be also under contemplation to extern this person under section 57(c)of the Gujarat Police Act. The Police Commissioner, Surat who is the authority, which exercised the powers under the PASA Act, has specified in the order that he sells English liquor from his residence and also creates serious issue of undermining the public order. His act also causes serious problem of regulating the administration and jeopardising the issues of health of citizens. In this backdrop of facts, the law on the subject shall need to be regarded by the Court before it concludes whether the action on the part of the respondent authority was justifiable in relation to the detention of the petitioner. 1. This Court in Special Civil Application No.6854 of 2012 in the case of Vijaybhai Raghavjibhai Sharma vs. State of Gujarat on 24.08.2012 had an occasion to deal with similar such case, where the detenue was involved in two cases registered under the Indian Penal Code with Gaekwad Haveli police station. He too was termed as “dangerous person” and a habitual offender. While considering his request for quashment, this Court referred to the decision of the Apex Court, which explained, who is the habitual offence and also exercised the test as to whether the activities would concern disturbance to the public order and whether it is of such a nature that it would travel beyond the capacity of an ordinary law to handle him and prevent his subversive activities affecting the community at large. 2. Apt would be to reproduce the relevant findings and observations in this case as under:- “Habitual Offender” is explained by the Apex Court in case of R.Kalavathi v. State of Tamil Nadu & Ors., reported in 2006 (6) SCC 14 . 2. Apt would be to reproduce the relevant findings and observations in this case as under:- “Habitual Offender” is explained by the Apex Court in case of R.Kalavathi v. State of Tamil Nadu & Ors., reported in 2006 (6) SCC 14 . It is held therein that habit gets proved from the totality of facts in the following words :- “The expression “habit” or “habitual” has not been defined under the Gujarat Prevention of Anti-Social Activities Act, 1985. The word “habitually” does not refer to the frequency of the occasions but to the invariability of a practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a “dangerous person” unless there is material suggesting his complicity in such cases, which lead to a reasonable conclusion that the person is a habitual criminal. The word “habitually” means “usually” and “generally”. Almost similar meaning is assigned to the word “habit” in Aiyar’s Judicial Dictionary, 10 Edn., at p.485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts.(See : Mustakmiya Jabbarmiya Shaikh v. M. M. Mehta) The expression “habitually” is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be continuity in the commission of those offences.(See : Ayub v. S. N. Sinha) From one single transaction though consisting of several acts, a habit cannot be attributed to a person. ” Exercise of whether this applicant can be held to be habituated or not from the totality of facts, is not to be undertaken. And, sufficient to recall the real test as to whether the activities would concern disturbance to the public order and whether fall out are of such a nature that the same would travel beyond capacity of the ordinary law to handle him and prevent his subversive activities affecting the community at large. Reply to the said test shall need to be negation. Reply to the said test shall need to be negation. Ordinary laws; if implemented effectively are potent enough to clear the said test and deal with the offender for curbing his activities sufficiently. Well laid down principles on the subject would not allow to sustain the order of detaining authority.” 8. In Special Civil Application No. 9542 of 2019, the detenue approached this Court seeking quashment of the order passed in exercise of powers conferred under section 3(2) of the PASA Act. The ground of registration of offence under the Indian Penal Code, cannot, by itself, bring the case of detenue within the purview of definition under section 2(c) of the PASA Act. It was submitted to the Court that it is not possible to hold on the basis of the facts of the present case that activity of detenue with respect to criminal cases had affected even tempo of the society causing threat to the very existence of normal routine life of people at large. On the basis of the criminal case, the detenue had put the entire social apparatus in disorder, making it difficult for the whole system to exist as a system governed by rule of law by disturbing public order. 9. The Court, after careful consideration of the material on record, held that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the First Information Report cannot have any bearing on the public order, as required under the Act and other relevant panel laws are sufficient enough to take care of the situation and the allegations levelled against the detenue cannot be said to be germane for the purpose of detenue within the meaning of section 2(c) of the Act. While so holding, the Court relied on decision of the Apex Court rendered in the case of Pushkar Mukherjee & Ors vs The State Of West Bengal , AIR 1970 SC 850 , where the Court has made out a clear distinction between the law and order and public order. 1. While so holding, the Court relied on decision of the Apex Court rendered in the case of Pushkar Mukherjee & Ors vs The State Of West Bengal , AIR 1970 SC 850 , where the Court has made out a clear distinction between the law and order and public order. 1. Apt would it be to reproduce the relevant paragraphs of the said decision as under:- “You have been acting in a manner prejudicial to the maintenance of public order by commission of offences of riotous conduct, criminal intimidation and assault as detailed below :-- (a) That on 3-11-65 at about 17/30 hrs. you assaulted Shri Ashutosh Dutta son of Shri Pyari Mohan Dutta of 55, M.C. Ghosh Lane, P.W. Howrah at the crossing of Panchanan Tala Road and M.C. Ghosh Lane, with knife causing bleeding injuries on his hand. (b) That on 8-10-66 at about 16.00 hrs. while Shri Mahesh Prosad Bhagal son of Balgobinda Bhagal of 16, Belilious Road, P.S. Howrah was playing in an open field, you along with your associates demanded money from him and on his refusal you hurled cracker on him causing grievous injury on his right leg- (c) That on 8-6-67 at about 11.40 hrs. you accosted one Sushanta Kumar Ghosh son of Manmatha Ghosh of 2/1/1, Danesh Sk. Lane inside a saloon at 255, Panchanantala Road on previous grudge and being intervened by Shri Shyamal Biswas son of Sandhya Biswas of 255, panchanantala Road, P.S. Howrah, you whipped out a dagger and assaulted Shri Biswas with the dagger causing injury on his hand. (d) That on 23-11-67 at about 22.45 hrs. you hurled cracker on A.S.I.B. Kundu of Bantra P.S. While he was coming to Howrah along panchanantala Road in a wireless van and caused injury to the A.S.I. And damage to the wireless van. (e) That on 7-1-68 at about 18.30 hrs. you threatened one Satya Narayan Prosad son of Late purusattam Prosad of 10, Debnath Banerjee Lane, P.S. Howtab with assault at the crossing of M.C. Ghosh Lane and Bellilious Road. 6. (e) That on 7-1-68 at about 18.30 hrs. you threatened one Satya Narayan Prosad son of Late purusattam Prosad of 10, Debnath Banerjee Lane, P.S. Howtab with assault at the crossing of M.C. Ghosh Lane and Bellilious Road. 6. You are hereby informed that you may make a representation to the State Government within 30 days of the receipt of the detention order and that such representation should be addressed to the Assistant Secretary to the Government of West Bengal, Home Department, Special Section, Writers' Buildings, Calcutta and forwarded through the Superintendent of the Jail in which you are detained. 7. You are also informed that under Section 10 of the Preventive Detention Act, 1950 (Act IV of 1950) the Advisory Board shall if you desire to be heard you in person and that if you desire to be so heard by the Advisory Board you should intimate such desire in your representation to the State Government. Sd/- D.C. Mookerjee District Magistrate Howrah.” 8. On March 19, 1968 the Advisory Board made a report under s. 10 of the Act stating that there was sufficient cause for detention of Sri Kanta Bose alias Subhas Ch. Bose. On March 30, 1968 the Governor of West Bengal confirmed the detention order under s. 11 (1) of the Act. 9. Section 3 of the Act provides: “3. (1) The Central Government or the State Government may-- (a) If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-- (I) the defence of India, the relation of India with foreign powers or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance or supplies and a services essential to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act 1946 (XXXI of 1946), that with a view to regulating his continued presence-in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such persons be detained. (2) Any of the following officers, namely,- (a) District Magistrates, (b) Additional District Magistrates specially empowered in this behalf by the State Government, (c) the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad, (d) Collector in the State of Hyderabad, may satisfied as provided in sub-clauses (2) and (3) of clause (a) of sub-section (1 ) exercise powers conferred by the said sub-section. (3) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the State Government to which he is subordinate together with grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order made 'after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has 'been approved by State Government. (4) When any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have bearing on the necessity for the order.” Section 7 is to the following effect: “7. '(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which order has been made, and shall afford him the earliest opportunity if making a representation against the order to the appropriate Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.” 10. Yet another decision sought to be relied upon is rendered in the case of Sanjay @ Sunny @ Kekdo Maheshbhai Thakor vs State of Gujarat in Special Civil Application No. 2565 of 2015, where again, the challenge was to the order of detention made under sub-section (1) of section 3 of the PASA Act. Yet another decision sought to be relied upon is rendered in the case of Sanjay @ Sunny @ Kekdo Maheshbhai Thakor vs State of Gujarat in Special Civil Application No. 2565 of 2015, where again, the challenge was to the order of detention made under sub-section (1) of section 3 of the PASA Act. The petitioner had been detained as a bootlegger and dangerous person and the grounds of detention mentioned six cases registered with Bavla police station under the Gujarat Prohibition Act as two First Information Reports for the offences punishable under sections 307, 147, 148, 149, 307,332, 323 and 504 of the Indian Penal Code. There also, the Court relied on the decision of the Apex Court in the case of Pushkar Mukherjee & Ors (supra) and held that the detaining authority failed to substantiate that the alleged antisocial activities of the petitioner detenue adversely affect or were likely to affect adversely the maintenance of public order. The Court categorically held that because six cases have been registered, the Prohibition Act by itself would not have any bearing on the maintenance on public order. The petitioner was being tried under ordinary law and can be also punished, if offences are held to be proved against him, but the acts constituting offence cannot be said to have affected even tempo of the life of community much less public health. The Court, accordingly, had allowed this petition. 11. Apt would it be to refer to some of the relevant findings and observations of the Court from this decision, at this stage, it would be expedient to quote the judgment rendered by the Division Bench of this Court as under:- “At this stage, it would be expedient to quote the judgment rendered by the Division Bench of this Court in the matter of Ramesh Vandha Modhwadiya through brother, Laxmanbhai Vandha v. State of Gujarat, reported in 2009(3) GLH 296 , wherein in paragraph 11, the Division Bench has observed as under:- “11. PASA Act has been enacted with a clear object to prevent the crime and to protect the society from anti-social elements and dangerous characters against perpetration of crime by placing them under detention for such a duration as would disable them from resorting to undesirable criminal activities. PASA Act has been enacted with a clear object to prevent the crime and to protect the society from anti-social elements and dangerous characters against perpetration of crime by placing them under detention for such a duration as would disable them from resorting to undesirable criminal activities. The provisions of the Act are intended to deal with habitual criminals, dangerous and desperate outlaws, who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them. Law is well settled that the power under the Act should be exercised with restraint and great caution. In order to pass an order of detention under the Act against any person, the detaining authority must be satisfied that he is a `dangerous person' within the meaning of Section 2(c) of the PASA Act, who habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Penal Code or any of the offences punishable under Chapter V of the Arms Act as according to sub-section (4) of Section 3 of the Act it is such `dangerous person' who for the purpose of Section 3 shall be deemed to be a person “acting in any manner prejudicial to the maintenance of public order” against whom an order of detention may lawfully be made. Further, subsection (1) of Section 3 confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of `public order'. The explanation attached to subsection (4) of Section 3 reproduced above in the foregoing para contemplates that `public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub-section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be `acting in any manner prejudicial to the maintenance of public order' when such person is a `dangerous person' and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a `dangerous person' his alleged activities fall within the ambit of the expression `public order'. A distinction has to be drawn between law and order and maintenance of public order.” In paragraphs 15 and 16, the Division Bench has, after considering the factual position on the record, observed as under:- “15. We find that even going by the F.I.R. On the date of incident, it is alleged that the dentenu's father had a pistol with him. There is nothing to show that he had fired with the pistol or caused any harm to anybody. Possession of pistol by detenu's father without license may be an offence so far as father is concerned and not the son, the detenu. Further, it is also to be noted that though they had disturbed the programme, later, the programme continued without any disturbance. Further, they had not caused any harm or bodily injury to anybody present there. Even in the F.I.R. It is stated that they had not caused any serious harm or injury to anybody. At the most, in our view, the incident occurred on that day might have raised problems of law and order, but we find it impossible to see that they impinged public order. No motive was also attributed against the detenu for creating such an incident. In order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order to fall out and extend and reach of the alleged activities must be of such a nature the ordinary law cannot deal with it or prevent the subversive activities affecting the society. In our view, those incidents are not sufficient to take action against the detenu under the provisions of the PASA Act. We are, therefore, unable to agree that the incident in question occurred on 10.02.2008 would be sufficient to disturb the tempo of life of the community so as to disturb the public tranquility and public order. 16. In our view, those incidents are not sufficient to take action against the detenu under the provisions of the PASA Act. We are, therefore, unable to agree that the incident in question occurred on 10.02.2008 would be sufficient to disturb the tempo of life of the community so as to disturb the public tranquility and public order. 16. The incident referred to in the F.I.R. Had occurred on 10.02.2008 and criminal case was registered against the detenu and others and are being tried for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 25(1B)A.B.) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to detain a person, and to characterise him as a `dangerous person' curtailing his life and liberty. There is nothing to show that the detenu is a habitual offender, apart from the solitary incident occurred on 10.02.2008. May be, a solitary act has the propensity of affecting the tempo of life and public tranquility, but the incident occurred on 10.02.2008 will not fall under that category. The detaining authority could not point out any other incident in which he was involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The solitary incident pointed out in the F.I.R. And the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere fact that the order narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous person', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual offender. The mere fact that the order narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous person', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual offender. Power under the Act to detain a person in jail has to be exercised with restraint and great caution.” In the recent pronouncement of the Supreme Court in the matter of Pebam Ningol Mikoi Devi v/s. State of Manipur and others, reported in (2010)9 SCC 618 , the Supreme Court has considered all aspects pertaining to individual liberty and has also held that in a criminal case, if it is initiated against the detenu, the prosecution would not be in a position to procure evidence to sustain conviction cannot be a ground to pass an order of preventive detention under the National Security Act. In the result, this petition succeeds and is hereby allowed. The order of detention dated 30 December, 2014 passed by the respondent authority is hereby ordered to be quashed and the detenu is ordered to be set at liberty forthwith if he is not required in any other case. Rule is made absolute.” 12. From the material on the record it appears that in the First Information Report in connection with CR.No.III- 672 of 2019 the police could recover and 1344 bottles of liquor worth Rs.86,400/-. The petitioner appears to be involved on the basis of tip off as from the very place for which the tip of had been received, he had fled away in his vehicle. He has been dealt with by an ordinary law of the land and the case against him under the ordinary law of land is being dealt with and he has been granted regular bail by the court. The trial is still pending and he shall be dealt with in accordance with law. He is said to be a bootlegger since he is engaged to be dealing in unusual amount of quantity, however, since the trial is not concluded and in absence of any other cogent material, it will be difficult for the Court to uphold the version of the detaining authority of terming him as a bootlegger, whose activities causes serious threat to the public health and order. This being a solitary offence and considering the nature of allegations and also his involvement only once in the past which also is not regarded by the detaining authority in the order impugned, according to this Court, his case would not fall under the rigours of provision of PASA Act . In view of the ration laid down as discussed hereinabove, it can be said that his detention under the PASA Act is unwarranted and deserves quashing. When ordinary law of the land is capable of handling his case, even when he appears to be making a dent in the policy of prohibition, however, breach of law and order is one thing and threat to the public order is a separate issue altogether. His action does not require extreme steps of provisions under the PASA Act. 13. Resultantly, this Petition deserves to be allowed and is accordingly allowed , quashing and setting aside the order impugned dt. 23.12.2019 in the following manner. 14. While quashing and setting aside the order of detention dated 23.12.2019 bearing No.PCB/PASA/DTN/412 of 2019 passed by respondent No.2 under sub-section (2) of section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 and directing the jail authority to release the detenue from the detention, if not required in any other matter, the petitioner is directed to file an undertaking within 07 days before this Court and before the Police Commissioner by personally attending to his office. He shall abide by the order without fail and shall also further ensure the surety of his good conduct, to the satisfaction of the officer concerned, lest the officer concerned shall be at liberty to take necessary action for any breach that may be committed of the undertaking. 15. Accordingly, the petition to the aforesaid extent is allowed. Petition stands disposed of accordingly.