Abdul Gafurkhan Aiyubkhan Pathan. Vs. State of Gujarat and ors. - Court Judgment

Excerpt:

.....putting respondent nos. 4 and 5 above respondent no.1 in the select list. no material has been produced before us to show that it is the selection committee which upon assessment of merit of the appellant and respondent nos. 4 and 5, found appellant was less meritorious than the respondent nos. 4 and 5. in the first place the division bench overlooked that according to the statutory eligibility criterion only a section officer or a p.a.-cum-stenographer was eligible to be considered for appointment as assistant registrar and respondent no.1 was a head assistant. the division bench seems to have overlooked that while respondent nos. 4 and 5 were at ranks iv and v in the select list, respondent no.1 was at rank xiii and by brining him at par with respondent nos. 4 and 5, the division bench clearly ignored the claims of the seven candidates who figured in between from rank vi to xii and who were above respondent no.1......authority can pass the order of detention even on the basis of a solitary incident or instance, provided there is justifiable subjective satisfaction on objective material and consideration that such incident or offence is likely to create disturbance of ?spublic order??. emphasis is laid on ?spublic order?? and not on ?slaw and order?? which belongs to the realm of general law. after having taken into account the statutory definitions of the persons branded as ?sbootlegger?? or ?sdangerous person?? under the p.a.s.a. act, and detailed factual matrix of each case, the solitary incident or instance in question in these petitions has not been shown or spelt out from the record as affecting the ?spublic order?? or likely to create public disturbance or prejudicial or adverse to the maintenance of ?spublic order??, and therefore, the continued detention of the detenus in each case has not been shown to be justifiable, ...??2.3 hence, he has submitted that the impugned order deserves to be quashed and set aside.3. on the contrary, learned a.g.p. for respondent-detaining authority has supported the order of detention as well as grounds stated therein and has contended that the.....

Judgment:

1. The petitioner-detenu has filed this petition challenging the order of detention dated 26.12.2005 passed by District Magistrate, Bharuch City under the provisions of sub-Section (2) of Section 3 of the Gujarat Prevention of Anti-social Activities Act, 1985 (hereinafter referred to as the 'PASA Act').

2. Learned Advocate for the petitioner has invited my attention to the order of detention dated 26.12.2005 by which petitioner-detenu was arrested and sent to District Jail, Jamnagar as well as to the grounds supplied by the detaining authority, therein. As the ground of detention, one criminal case is shown as registered against the petitioner-detenu being C.R. No.1190/05 dated 06.12.2005 at Jaghdia police station, Dist. Bharuch punishable under Section 66B, 65A,E, 116(B) and 81 of the Bombay Prohibition Act. In connection with the said offence the authority seized 3502 bottles of English liquor and beer with other things, in all valued at Rs.18,11,950/-.

2.1 He has further submitted that in the order of detention it was stated that the petitioner-detenu is carrying on anti-social activities and on the basis of solitary offence of 'bootlegging' registered against the petitioner-detenu, he was termed as 'Bootlegger' within the meaning of Section 2(b)of the P.A.S.A. Act. It was also stated in the impugned order that as the said bootlegging activities of the detenu are dangerous and affecting maintenance of 'public order' and 'public health', order of detention has been passed against him.

2.2 He has further submitted that on the basis of only one criminal case registered against the petitioner-detenu, he cannot be termed as 'Bootlegger'. In support of his case he has placed reliance on a decision of this Court passed in the case of ?SSohanlal Surajram Visnoi v. State of Gujarat and Ors.?? reported in 2004(2)GLR 1051 wherein it was held as under,

It may be noted that the contention advanced on behalf of the petitioners that no preventive detention order can be recorded in a solitary incident or instance or offence cannot be accepted in toto. The detaining authority can pass the order of detention even on the basis of a solitary incident or instance, provided there is justifiable subjective satisfaction on objective material and consideration that such incident or offence is likely to create disturbance of ?SPublic Order??. Emphasis is laid on ?SPublic Order?? and not on ?SLaw and Order?? which belongs to the realm of general law. After having taken into account the statutory definitions of the persons branded as ?Sbootlegger?? or ?Sdangerous person?? under the P.A.S.A. Act, and detailed factual matrix of each case, the solitary incident or instance in question in these petitions has not been shown or spelt out from the record as affecting the ?SPublic Order?? or likely to create public disturbance or prejudicial or adverse to the maintenance of ?SPublic Order??, and therefore, the continued detention of the detenus in each case has not been shown to be justifiable, ...??

2.3 Hence, he has submitted that the impugned order deserves to be quashed and set aside.

3. On the contrary, learned A.G.P. for respondent-detaining Authority has supported the order of detention as well as grounds stated therein and has contended that the Authority has passed the impugned order after taking into consideration all the facts and circumstances of the case, and hence, no case is made out calling for interference of this Court.

4. As a result of hearing and perusal of the record it appears that in this case the only material is one criminal case registered against the petitioner-detenu and on the basis of that it cannot be said that the activity of the detenu has become a threat to the maintenance of 'public order' and 'public health'. The offence committed by the petitioner pertains to prohibition to which I have already made reference in my earlier part of the judgment. Mere involvement of petitioner in bootlegging activities may not amount to dangerous activity by petitioner-detenu and mere mention of them unless supported by any evidence cannot be said to be material and germane for the purpose of arriving at subjective satisfaction that the activity of the petitioner-detenu is prejudicial to the maintenance of 'public order' and 'public health'.

4.1 I am, therefore, of the view that the detaining authority has passed the order of detention without there being any credible or cogent material on record in this behalf. I have considered factual and legal aspects emerging from the record of the petition and considered the rival submissions and the facts of the case and also considered the judgment of this Court in the case of Sohanlal Sujaram Visnoi (Supra). In view of the facts and circumstances of the present case and also ratio laid down in the case mentioned above, the order of detention cannot be sustained and it deserves to be quashed and set aside.

5. In the result, this petition is allowed. The order of detention dated 26.12.2005 passed by District Magistrate, Bharuch city is hereby quashed and set aside. The petitioner-detenu is, therefore, ordered to be set at liberty forthwith, if he is not required in connection with any other case by the Authority. Rule is made absolute accordingly. Direct service is permitted.