Criminal Writ Petition No. 817 of 1999

20th January, 2000

Petitioner Counsel: Mr.R.S. MOHITE & Mr. M.S. MOHITE
Respondent Counsel: Mr.R.M. AGARWAL
Other Counsel: Mrs.V.K. TAHILRAMANI

Cases Cited:
Kanuji S. Zala Vs. State of Gujarat, 1999(3) LJ (SC) 474 [Para 7]
Omprakash Vs. Commissioner of Police, 1989 Supp (2) SCC 576 [Para 8]
Rashidmiya @ Chhave Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad, (1989) 3 SCC 321 [Para 8]
Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City, 1989 Supp (1) SCC 322 [Para 8]

JUDGMENT

N.J. PANDYA, J :- The wife of the Detenu, who has filed the present petition, is seeking release of the Detenu who has been detained under the provisions of Gujarat Prevention of Antisocial Activities Act, 1985, as applicable to the Union Territory of Dadra and Nagar Haveli. The Detention Order is dated 1st May, 1999 and he came to be detained on that very day. Usual process of confirmation, opinion of Advisory Board and further confirmation have been gone through between 4th May, 1999 and 5th June, 1999 and, on this score, therefore, there is no grievance.

2. The grievance is confined to the fact that the impugned detention order Exhibit - A, Page -19 read along with the Grounds of Detention Order, Exhibit - B, Page 20 onwards, is vitiated because the subjective satisfaction is based on non-existent material.

3. It is an admitted position that the Detention Order is passed on the basis of the definition of Bootleggers as defined under Section 2(a) of the said Act. The relevant portion may be found in the Grounds of Detention at page 20 and crystalised further in paragraph 3 at page 23 as also in paragraph 4 on that very page. For the present, Paragraph 3 of the detention order is quoted hereunder.

"3. I am subjectively satisfied that you are a bootlegger and thereby a perpetual danger to the society at large. You have created feeling of alarm/insecurity among the General Public of Silvassa by your said activities. Your said activities are wide-spread danger from Public health point of view. Thus, your activities are prejudicial to the maintenance of Public Order in Silvassa."

4. On earlier occasion, this Court had dealt with a matter under the said Act. It being a matter of detention and on finding that the petitioner having been detained as bootlegger in absence of material which could have enabled the detaining authority to arrive at a subjective satisfaction as recorded in the aforesaid paragraph 3 being non existent, the order could not be sustained. Like in the instant case, in the previous matter also, i.e. Criminal Writ Petition No. 316 of 1999 and other related matters, it was an accepted position that the allegation as to the detenu being a bootlegger was substantiated by material on record. However, the subsequent conclusion as recorded in paragraph 3, which is quoted above, as to the feeling of insecurity and alarm, the activities being wide spread danger from public health point of view, no material was found in the previous case.

5. The material placed for our appreciation on record for the very stand taken by Ld. counsel for the Respondents who has stated that like the previous matter in the instant case also with regard to the feeling of alarm and insecurity of wide spread danger from public health point of view, there is no material on record. In fact, according to Ld. counsel for the Respondents, the ground should be read as per paragraph 3 as under:

"I am subjectively satisfied that you are a bootlegger and thereby a perpetual danger to the society at large....................... ......................Thus, your activities are prejudicial to the maintenance of public order in Silvassa."

6. In support of his submission, Ld. counsel for the Respondents had referred to Section 2(b) and definition clause of Section 3 sub-section (4) where deeming provision is there along with an explanation of Sub-section (4) as also Section 6 of the said Act where Grounds of detention severable, is permissible.

7. Ld. counsel for the Respondents therefore submitted that the earlier decision of this Court, as referred to above, is not in that Petition but in the other related matters and the whole bunch of them had not kept in mind the provisions of Section 6 as to severable of grounds. Further he submitted that there is a judgment of the Hon'ble Supreme Court of India in the matter of Kanuji S. Zala Vs. State of Gujarat & Ors., reported in 1999(3) LJ (SC) Page 474. Justice Nanavati speaking for the Division Bench has dealt with the matter arising out of the provisions of the Prevention of Gujarat Antisocial Activities Act, 1985. After referring to the earlier three decisions, two of which are relied on before us on behalf of the petitioner also, the Ld. Judge has considered the case.

8. The said 3 decisions are; (i) Omprakash Vs. Commissioner of Police and Others, reported in 1989 Supp (2) S.C.C. 576, (ii) Rashidmiya @ Chhave Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and Another, reported in (1989) 3 S.C.C. Page 321, and (iii) Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and Another. reported in 1989 Supp (1) S.C.C. Page 322. Learned Counsel for the Petitioner has relied on the last of the two Supreme Court judgments referred to above.

9. Zala's matter was dealt with on the basis of the material that was before Their Lordships and it was found that, as per the observations and findings in paragraphs 4 and 5 of the judgments, the detenu was a bootlegger and, therefore, the activities of the detenu were found to be feeling of insecurity or wide-spread danger from public health point of view. There was also material in the form of statements of the witness which clearly shows that as a result of violence resorted to by the Petitioner of that case even tempo of the public life was disturbed in those localities for some time. The material on record also clearly established that members of the public of those localities had to run away from there or to go inside their houses and close their doors.

10. However, the aforesaid part of the judgment is read by both the sides but inspite of this being the position of the record of that case, what has been set out in paragraph 6 has given rise to diverse submissions on the part of learned counsel of the respective parties. Paragraph (6) of the judgment reads as under :-

"6. As already stated earlier, in this case the detaining authority has specifically mentioned in the grounds that the activity of the detenu was likely to cause harm to the public health and that by itself is sufficient to amount to affecting adversely the public order as defined by the Act. The detaining authority has also stated that as a result of resorting to violence by the petitioner for carrying on his bootlegging activity, even tempo of public order has also been disturbed on some occasions. In view of the material on record it cannot be said that the satisfaction of the District Magistrate, in this behalf, was not reasonable or genuine."

11. Ld. Counsel for the Respondents wants us to stop at the words "................ ................ as defined by the Act." That means, of the said entire para 6, he wants to take advantage of the first 4 lines as they appear in the said report ending with the words quoted above.

12. Ld. Counsel for the Petitioner has read the entire paragraph and submits that this being the ultimate result of the matter before the Hon'ble Supreme Court, the judgment when read in its entirely would clearly show that the activities of being bootleggers alone are not sufficient, for detention.

13. In this background, when we go to the submission of Ld. Counsel for the Respondents that severable grounds as per Section 6 be applied, we straightaway observe that this submission has no merit. The reason is that the grounds of detention are to be read in the definition clause and they are (i) bootlegger (ii) drug offender (iii) immortal trafficking and (iv) property grabber. etc. Had there been the detention order based on all or any of these grounds got pressed into service together and had there been any situation as envisaged by Section 6 resulting into making one of the grounds redundant or not reliable applying these severable grounds, the order has to be considered because as per Section 6, there is deeming of order having been made under each of the different grounds.

14. This being not the position in the instant case, in our opinion, there is no question of taking recourse to Section 6 and to read Grounds of Detention at page 23, as sought to be read by Ld. Counsel for the Respondents. Paragraph 3 has been quoted in full as also part after the severable grounds as relied on by Ld. Counsel for the Respondents.

15. We are of the view that the detention order is only on one ground viz. that the Petitioner being a bootlegger. Learned Counsel for the Petitioner has conceded that there is material on record which could enable the detaining authority to form a subjective satisfaction that the Petitioner is a bootlegger. However, according to Ld. Counsel, the material stops on that only. There is no other material at all for the remaining part of the satisfaction relating to harm to the public health or danger to public at large.

16. In this connection, reliance placed on Rashidmiya and Piyush case may now be referred to. Rashidmiya's case in paragraph 16 deals directly with Section 2(b) and Section 3(4) of the PASA as applicable to the State of Gujarat and the clear finding of Their Lordships is that if the detenu is shown to be bootlegger only in absence of any other material inspite of Section 3 Sub-section (4) along with explanation, the detention order cannot be sustained. In the case of Piyush Kantilal Mehta also, paragraphs 12, 14 and 18 clearly indicate that only the activity of a bootlegger without there being any material with regard to the explanation read with Sub-section (4) of Section 3 of PASA will not be sufficient to sustain the subjective satisfaction which refers to this very ingredient of this statutory provision.

17. Thus, while accepting that neither Section 6 was shown to the Ld. Judges of the Bench who gave the said judgment in the earlier matters to which one of us is party (N.J.Pandya) nor was the case of Zala put before that Bench after considering this statutory provisions of Section 6 and the said Zala's judgment, in our opinion, no different conclusion can be arrived at and there can be no other result except that the detention order cannot be sustained. It is not sustained because it is based only on material indicating that the activities of the detenu amount to that of bootlegging. In the absence of anything further the conclusion set out in paragraph 3 cannot be sustained along with preceding page referring to quota system employed in Dadra and Nagar Haveli area to tribal from indulging into intoxicate drink and also with the laudable purpose weaning them away from this habit.

18. The term bootlegger itself is defined in the Act applicable to the Union Territory with reference to Excise Duty Regulation Act which necessarily means that if any one sells liquor or alcoholic substance covered by Regulation in breach thereof it amounts to bootlegging activities.

19. Bootlegging activities in Union Territory on one hand and in the State of Gujarat where there is total prohibition on the other would thus be totally different. The concept of invoking the presumption of Sub-section (4) of Section 3 read with explanation, therefore, will also be totally different.

20. In a State where there is total prohibition, the presumption will have a greater force because breach of prohibitory enactment would itself be an activity prejudicial to the Society. Here, the purpose is, no doubt, to regulate the supply of intoxicate material in form of alcoholic drinks and thereby to regulate its flow in the territory and, therefore, the activity as such would amount to bootlegging. However, in order to enable the detaining authority to clamp the detention order, that too under a Preventive Detention Law, in our opinion, would require material to support this subjective satisfaction as recorded and if the material is found wanting, the order would be vitiated. We do not find any diversion of views between any of the judgments of the Hon'ble Supreme Court. They are consistent and in conformity with each other and when they are applied to the facts of the present case including the latest Zala's case, in our opinion, absence of material would bring in this very result which we have come to the conclusion.

21. The net result therefore is that the Petition stands allowed. The detention order is quashed and set aside. Rule is made absolute in terms of prayer clause (a). Writ to be sent forthwith.

Petition allowed.