Gujarat High Court

Rajeshbhai Balubhai Kolipatel vs District Magistrate on 24 March, 2021

Bench: Bhargav D. Karia

          C/LPA/299/2021                                           ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 299 of 2021
          In R/SPECIAL CIVIL APPLICATION NO. 12005 of 2020
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
             In R/LETTERS PATENT APPEAL NO. 299 of 2021
==========================================================
                     RAJESHBHAI BALUBHAI KOLIPATEL
                                 Versus
                          DISTRICT MAGISTRATE
==========================================================
Appearance:
MR ADIL R MIRZA(2488) for the Appellant(s) No. 1
MS SHRUTI PATHAK, AGP for the Respondent(s) No. 1,2,3
==========================================================

  CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
         and
         HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                           Date : 24/03/2021
                            ORAL ORDER

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

1. Heard Mr.Adil Mirza, learned counsel for the

appellant and Ms.Shruti Pathak, learned Assistant

Government Pleader for the State respondents.

2. This Letters Patent Appeal under Clause 15 of

the Letters Patent is filed by the appellant

challenging the judgment and order dated 02.12.2020

passed by the learned Single Judge in Special Civil

Application No.12005 of 2020, whereby the writ

petition challenging the order of preventive

detention was dismissed.

C/LPA/299/2021 ORDER

3. The appellant was detained pursuant to order of

detention dated 09.07.2020 passed by respondent No.1

in the backdrop of registration of three offences

against him before Dungara Police Station under

Sections 65(A)(E), 81 of the Gujarat Prohibition Act,

1949 based on FIRs dated 31.12.2019, 02.01.2020 and

10.10.2019. Pursuant to the above order, the

appellant is in jail.

4. In the challenge before the learned Single Judge

in the writ petition under Article 226 of the

Constitution of India, contentions were raised mainly

about the detention of the appellant that he was

arraigned in three offences and as such, the detenue

was not falling within the definition of

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

Gujarat Prevention of Antisocial Activities Act,

1985 ("Act" for short), as no muddamal had been

recovered from the appellant. The detenue was wrongly

implicated in the above FIRs and therefore, cannot be

said to be a bootlegger. 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

C/LPA/299/2021 ORDER

antecedents against the detenue. The detenue did not

indulge in repeated crime nor he was externed 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.

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 petitionerdetenue

came to be negatived by confirming the order of

detention.

6. Before us, similar grounds are raised to

challenge the order of the learned single Judge as

well as the order passed by the detaining authority

branding the appellantpetitioner 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

C/LPA/299/2021 ORDER

of 2010 in support of the contentions. It is,

therefore, submitted that the appellantdetenue

deserves to be released by quashing and setting aside

the order passed by learned Single Judge whereby the

order of detention is 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 appellant.

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

Assistant Government Pleader, appearing for the

respondents vehemently opposed the prayer of the

appellant 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

order passed by the detaining authority as confirmed

by the learned Single Judge deserves no interference.

C/LPA/299/2021 ORDER

8. Having regard to the facts and circumstances of

the case and on a careful perusal of the order of

detention containing the grounds visavis subjective

satisfaction arrived at by the detaining authority in

exercise of powers under section 3(1) of the Act and

the material placed on record, though the Court will

be loath 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 appellant cannot be said to be a bootlegger.

Further, in the absence of material about disturbance

to public order, we find that no compelling

circumstance was available with the detaining

authority to exercise power of prevention 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

C/LPA/299/2021 ORDER

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 (supra), the issue relating to

public order and law and order problem had been dealt

C/LPA/299/2021 ORDER

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 the three FIRs related to