Kripalsinh Manubha Parmar ... vs District Magistrate
2021 Latest Caselaw 10254 Guj

       C/LPA/637/2021                             ORDER DATED: 02/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 637 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 7898 of 2021
                                  With
                R/LETTERS PATENT APPEAL NO. 651 of 2021
                                    In
                SPECIAL CIVIL APPLICATION NO. 7883 of 2021
==========================================================
DHARMENDRASINH @ MUNNABHAI @ ABAL JAYENDRASINH PARMAR
     (DARBAR) THROUGH RAVIRAJSINH LALUBHA PARMAR
                         Versus
           THE DISTRICT MAGISTRATE & 2 other(s)
==========================================================
Appearance:
MR LAXMANSINH M ZALA(5787) for the Appellant(s) No. 1
for the Respondent(s) No. 1,3
MS SHRUTI PATHAK, ASST GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 2
==========================================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
           VIKRAM NATH
           and
           HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 02/08/2021

                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. Heard Mr. Laxmansinh Zala, learned counsel for the appellants and

Ms. Shruti Pathak, learned Assistant Government Pleader for the State

respondents.

2. These Letters Patent Appeals, under Clause 15 of the Letters

Patent, are filed by the appellants challenging the judgment and orders

dated 28.06.2021 passed by the learned Single Judge in Special Civil

C/LPA/637/2021 ORDER DATED: 02/08/2021

Applications No. 7898 and 7883 of 2021, whereby the writ petitions

challenging the orders of preventive detention were dismissed.

3. The appellants were detained pursuant to order of detention dated

02.02.2021 passed by respondent No.1 in the backdrop of registration of

solitary offence against them before Muli Police Station under Sections

65(a)(e), 116B, 98(2) and 81 of the Gujarat Prohibition Act, 1949 based

on FIR dated 27.09.2020. Pursuant to the above orders, the appellants are

in jail.

4. In the challenge before the learned Single Judge in the writ

petitions under Article 226 of the Constitution of India, contentions were

raised mainly about the detention of the appellants that they were

arraigned in solitary offence and as such, the detenue was not falling

within the definition of "Bootlegger" as defined under section 2(b) of the

Gujarat Prevention of Anti-social Activities Act, 1985 ("Act" for short).

Various other contentions were raised before the learned Single Judge,

including that there was no breach of law and order much less public

order and that there were no past antecedents against the detenue and

without exhausting such alternative remedy, precious fundamental right

to life and liberty guaranteed under Article 21 of the Constitution of India

was taken away in a casual manner.

C/LPA/637/2021 ORDER DATED: 02/08/2021

5. Learned Single Judge noticed that the subjective satisfaction

exercised by the detaining authority deserves no interference and as such,

the contention of the learned counsel for the petitioners-detenue came to

be negatived by confirming the orders of detention.

6. Before us, similar grounds are raised to challenge the orders of the

learned Single Judge as well as the orders passed by the detaining

authority branding the appellants-petitioner as bootlegger as defined

under section 2(b) of the Act. Reliance is placed on two decisions of this

Court in the case of Piyush Kantilal Mehta vs. Commissioner of

Police, Ahmedabad City and another, reported in AIR 1989 SC 491

and another decision being CAV Judgment dated 28.3.2011 rendered in

Letters Patent Appeal No.2732 of 2010 in support of the contentions. It

is, therefore, submitted that the appellants-detenue deserve to be released

by quashing and setting aside the orders passed by learned Single Judge

whereby the orders of detention are confirmed. It is next submitted that a

recent Division Bench judgment of this Court dated 31.08.2020 passed in

the case of Vijay Alias Ballu Bharatbhai Ramanbhai Patni vs. State of

Gujarat, being Letters Patent Appeal No.454 of 2020, squarely covers

the case of the present appellants.

C/LPA/637/2021 ORDER DATED: 02/08/2021

7. As against the above, Ms.Shruti Pathak, learned Assistant

Government Pleader, appearing for the respondents vehemently opposed

the prayer of the appellants on the ground that the learned Single Judge

has passed reasoned judgment and submitted that the procedure adopted

by the authority was followed in accordance with law. It is submitted that

the powers conferred on the detaining authority and the procedural

safeguards are not devised to allow persons to continue with criminal

activities and take advantage of technical loopholes. Therefore, the

orders passed by the detaining authority as confirmed by the learned

Single Judge deserve no interference.

8. Having regard to the facts and circumstances of the case and on a

careful perusal of the order of detention containing the grounds vis-a-vis

subjective satisfaction arrived at by the detaining authority in exercise of

powers under section 3(1) of the Act and the materials placed on record,

though the Court will be loathe in interfering with such subjective

satisfaction of the detaining authority but at the same time, all other

aspects including that of disturbance of public order, past antecedents of

crime and on consideration of the definition of "bootlegger" as provided

in section 2(b) of the Act, the appellants cannot be said to be a

bootlegger, when the offence is solitary. Further, in the absence of

material about disturbance to public order, we find that no compelling

C/LPA/637/2021 ORDER DATED: 02/08/2021

circumstance was available with the detaining authority to exercise power

of preventive detention and the overall facts do not reveal that preventive

detention of the detenue was warranted. Here we would like to refer to

the decision of this Court in case of Aartiben W/o Nandubhai

Jayantibhai Sujnani vs. Commissioner of Police in L.P.A. No.2732 of

2010 dated 28.3.2011 in which observations made by Apex Court in the

case of Pushker Mukherjee vs. State of West Bengal, reported in AIR

1970 SC 852 are quoted, wherein distinction is drawn about public order

and law and order. The Supreme Court observed in the said judgment as

under:

"Does the expression "public order" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."

9. In the judgment dated 31.08.2020 in the case of Vijay alias Ballu

C/LPA/637/2021 ORDER DATED: 02/08/2021

(supra), the issue relating to public order and law and order problem had

been dealt with in detail. Law of preventive detention has to be construed

not as in an ordinary criminal proceedings of detaining or arresting a

person who is said to have committed crime where the procedure is

provided and the remedy is available. However, the law of preventive

detention is to be strictly followed as per the statute and the settled law on

the point. In the present case, we find that there is only a single FIR related

to prohibition offences. By no stretch of imagination can we hold that such

incidents could describe a person as a bootlegger.

10. Under the circumstances, in view of the judgment of this Court in

the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs.

Commissioner of Police & 2 others and considering the totality of

circumstances, in our opinion, the detaining authority has failed to

substantiate that the alleged antisocial activities of the appellants-detenu

adversely affect or are likely to affect adversely the maintenance of

public order. Just because a solitary offence has been registered against

the appellants-detenu under the Gujarat Prohibition Act, that by itself,

does not have any bearing on the maintenance of public order. The orders

of detention, therefore, cannot be sustained and deserve to be quashed

and set aside.

C/LPA/637/2021 ORDER DATED: 02/08/2021

11. For the foregoing reasons, the Letters Patent Appeals are allowed.

The judgment and orders passed by the learned Single Judge in Special

Civil Applications No. 7883 and 7898 of 2021 dated 28.06.2021 are hereby

quashed and set aside. The order of detention dated 02.02.2021 passed by

respondent No.1 are accordingly quashed and set aside. The appellants are

ordered to be set at liberty forthwith if not required in any other offence.

(VIKRAM NATH, CJ)

(BIREN VAISHNAV, J) DIVYA