SUMITSINGH SURENDRASINGH CHAUHAN THRO HEMANT SURENDRASINGH CHAUHAN v. STATE OF GUJARAT
Court: High Court of Gujarat
Bench: HONOURABLE MR. JUSTICE A.Y. KOGJE,HONOURABLE MR. JUSTICE SAMIR J. DAVE
Judgment date:
Case summary
High Court of Gujarat judgment dated 2024-05-06. SUMITSINGH SURENDRASINGH CHAUHAN THRO HEMANT SURENDRASINGH CHAUHAN v. STATE OF GUJARAT. Read the judgment...
Judgment text
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20176 of 2023 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE A. Y. KOGJE Sd/- and HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/- =========================================================== 1 Whether Reporters of Local Papers may be allowed No to see the judgment ? 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy No of the judgment ? 4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ? =========================================================== SUMITSINGH SURENDRASINGH CHAUHAN THRO HEMANT SURENDRASINGH CHAUHAN Versus STATE OF GUJARAT & ORS. =========================================================== Appearance: MEHUL A SURATI(7870) for the Petitioner(s) No. 1 MR YUVRAJ BRAHMBHATT, AGP for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No.
2,3 =========================================================== CORAM:HONOURABLE MR. JUSTICE A. Y. KOGJE and HONOURABLE MR. JUSTICE SAMIR J. DAVE Date : 06/05/2024 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE A. Y. KOGJE) 1. This petition under Article 226 of the Constitution of India is filed for following relief:- “(A) Quash and set aside the detention order bearing No. PCB /DTN /PASA 609 of 2023 dated 6. 11. 2023 further be pleased to release the detenu forthwith (Annexure ‘A’). ” 2. Thus, essentially, the challenge is to the order of detention dated 06. 11. 2023 passed by the Police Commissioner, Ahmedabad, respondent No. 2 herein, by which the petitioner has been detained as a “bootlegger” as defined under section 2(b) of the Act based on two offences registered against him, details of which are as under:- Sr. Name of Police CR No. and date Sections Date of bail No. Station order 1 Bapunagar Police 11191007220698 of 66(1B), 65AE, 03. 09. 2022 Station 2022 dated 81, 98(2) and 11.
08. 2022 116(1B) of the Prohibition Act 2 Bapunagar Police 11191007230648 of 65AE, 81, 98(2) 20. 10. 2023 Station 2023 dated and 116B of the 07. 10. 2023 Prohibition Act 3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside as registration of the offences under Sections of the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) of the Act. Further, learned advocate for the detenue submits that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order.
Further, except statement of witnesses, registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order. Learned Advocate for the petitioner further submits that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder. 4.
Learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(b) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court. 5.
Having heard learned Advocates for the parties and having perused documents on record, it appears 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 FIR/s cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(b) of the Act. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society. 6.
The Court has also taken into consideration the fact that the petitioner has been enlarged on regular bail by the Court of competent jurisdiction and the detention order does not reflect application of mind to the fact that the Detaining Authority has considered cancellation of bail to be ineffective method to curtail activities of the petitioner. Therefore, in the opinion of the Court, the Detaining Authority not having taken into consideration the cancellation of bail option. The subjective satisfaction would stand vitiated as is held in recent decision of the Hon’ble Supreme Court in the case of Shaik Nazeen v/s. State of Telanga and Ors. reported in 2023 (9) SCC 633, the Hon’ble Supreme Court has made following observations in para 19 as under:- “19. In any case, the State is not without a remedy, as in case the detenue is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court.
But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case. ” 7. The Court also finds that there is no live link between the two offences as the first offence was committed on 11. 08. 2022, wherein the petitioner was enlarged on 03. 09. 2022 and the second offence was committed on 07. 10. 2023, wherein he was enlarged on 20. 10. 2023. 8. The Court has also taken into consideration the subjective satisfaction arrived at by the detaining authority by concluding that the activity of the petitioner is detrimental to the public health and therefore, amounts to breach in public order.
However, though the detaining authority has referred to possible adverse effect on the public health, there is no contemporaneous material or anything on record which could support the conclusion of detaining authority that the sale of liquor at the behest of the petitioner has resulted in disturbance in any manner in the society or that the consumption of the liquor so sold by the petitioner has resulted in damage to the public health. There is also no FSL report on the record of the case. In absence of any material on record, it was not open for the detaining authority to conclude and hence, the subjective satisfaction of the detaining authority is vitiated. 9. The Court has also taken into consideration the subjective satisfaction arrived at by the detaining authority by concluding that the activity of the petitioner is detrimental to the public health and therefore, amounts to breach in public order.
However, though the detaining authority has referred to possible adverse effect on the public health, there is no contemporaneous material or anything on record which could support the conclusion of detaining authority that the sale of liquor at the behest of the petitioner has resulted in disturbance in any manner in the society or that the consumption of the liquor so sold by the petitioner has resulted in damage to the public health. There is also no FSL report on the record of the case. In absence of any material on record, it was not open for the detaining authority to conclude and hence, the subjective satisfaction of the detaining authority is vitiated. 10.
In view of above, we are inclined to allow this petition, because simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act. 11. In the result, the present petition is hereby allowed and the impugned order of detention dated 06. 11. 2023 passed by the respondent–detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case. 12. Rule is made absolute accordingly. Direct service is permitted. Sd/- (A. Y. KOGJE, J) Sd/- (SAMIR J. DAVE,J) SHITOLE
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