Madhusudan Maleshyam Vadnal Vs Commissioner of Police

MR SANJAY PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 1 MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 2

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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

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Date : 02/09/2014 CAV JUDGMENT

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Perused the petition, materials supplied to
the detenu, detention order, etc. and heard learned

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advocate Mr. Prajapati for the petitioner and learned
A.G.P. Ms. Chitaliya for the respondent – State.

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2This petition under Article 226 of the
Constitution of India is directed against the proposed
order of detention, if any, passed by the respondent
authority in exercise of powers conferred under
Section 3(2) of the Gujarat Prevention of Anti Social
Activities Act, 1985 (for short the Act) by detaining
the detenu as a ”bootlegger” as defined under Section
2(b) of the Act.

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3Learned advocate for the detenu submits that
order of detention impugned in this petition deserves
to be quashed and set aside on the ground that one
offence registered against the detenu before the
concerned police station vide Prohibition C.R. No.
5033 of 2014 for the offences punishable under
Sections 66(b), 65(a)(e), 116 and 81 of the Bombay
Prohibition Act and is not of such magnitude and
intensity as to have the effect of disturbing the
public order so as to pass an order under Section 3(1)
of the PASA Act. Learned advocate for the petitioner
has further submitted that the detaining authority has
not applied its mind to the vital facts and there was
non-application of mind before recording the order of
detention.

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4Learned A.G.P. for the respondent – State
supported the detention order passed by the authority
and submitted that sufficient material and evidence

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was found during the course of investigation, which
was also supplied to the detenu, indicating that the
detenu is in the habit of indulging into activities 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 the
detention order deserves to be upheld by this Court.
For such submission, the learned A.G.P. took me
through the grounds upon which detaining authority
satisfied to detain the petitioner.

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5Section 2(b) of the Act defines the term
“bootlegger” as under:

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“2(b). “bootlegger” means a person who distills,

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manufactures, splurges, transports, imports,
exports, sells ordistributesanyliquor,
intoxicating drug or other intoxicant in
contravention of any provision of the Bombay
Prohibition Act, 1949 (Born. XXV of 1949) and
the rules and orders made thereunder, or of any
other law for the time being in force or who
knowingly expends or applies any money or
supplies any animal, vehicle, vessel or other
conveyance or any receptacle or any other
material whatsoever in furtherance or support of
the doing of any of the things described aboveby
or through any other person, or who abets inany
other manner the doing of any such thing.”

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6The order of detention is passed on the
basis of what has come to be known as the subjective

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satisfaction of the detaining authority such
subjective satisfaction has to be arrived at on two
points. Firstly, on the veracity of facts imputed to
the person to be detained and secondly, on the
prognostication of the detaining authority that the
person concerned is likely to indulge again in the
same kind of notorious activities. Whereas, normal
laws are primarily concerned with the act of
commission of the offence, the detention laws are
concerned with character of the person who has
committed or is likely to commit an offence. The
detaining authority has, therefore, to be satisfied
that the person sought to be detained is of such a
type that he will continue to violate the laws of the
land if he is not preventively detained. So, the
commission of infraction of law, not done in an
organized or systematic manner, may not be sufficient
for the detaining authority to justifiably come to the
conclusion that there is no alternate but to
preventively detain the petitioner.

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7Having heard learned counsel for the parties
and considering the facts and circumstances of the
case, 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 since the law of
the land i.e. Indian Penal Code and other relevant
penal laws are sufficient enough to take care of the
situation and that the allegations as have been

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levelled against the detenu cannot be said to be
germane for the purpose of bringing the detenu within
the meaning of Section 2(b) of the Act and unless and
until the material is there to make out a case that
the person concerned has become a threat and a menace
to the society so as to disturb the whole tempo of the
society and that the whole social apparatus is in
peril disturbing public order at the instance of such
person. In view of the allegations alleged in the
F.I.R./s the Court is of the opinion that the
activities of the detenu cannot be said to be
dangerous to the maintenance of public order and at
the most fall under the maintenance of ”law and
order.” In this connection, it will be fruitful to
refer to a decision of the Supreme Court in Pushker
Mukherjee v/s. State of West Bengal [AIR 1970 SC 852],
where the distinction between 'law and order' and
'public order' has been clearly laid down. The Court
observed as follows:

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“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

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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

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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.”

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8It is generally seen that though some of the
accused are repeatedly detained on different occasions
for different offences, only because of nondisclosure
of proper information and in all such detention
orders, such orders are generally quashed and set
aside by the Court. It is also seen that because of
quashing of previous detention order, competent
authority could not consider the grounds of detention
under such order which is already quashed as a ground
for detention for subsequent offences by the same
detenue. However, when competent authorities are not
abiding all other cited cases while passing the order
of detention based upon solitary offence, it is
surprising to note that at no point of time they
challenged the observation of any Court that when

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previous order of detention has been quashed, it
cannot be considered in subsequent detention. It goes
without saying that if a particular detenu continuous
to commit the similar offence repeatedly, and if he is
required to be detained repeatedly then at-least at
some point of time, the competent authority shall
compile all the information and shall consider it for
fresh detention order as and when necessary and shall
produce all such information before the Court so as to
avoid the quashing of such detention order. If
competent authority fails to take care of such
exercise and when in impugned order of detention all
such facts were not disclosed or considered for
passing such order, the detention order is required to
be dealt with as it is without considering the
additional disclosure in affidavit-in-reply by the
respondents.

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8.1In the present case, it seems that

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petitioner has been detained several times but at
present, the detention order under challenge does not
disclose all such facts so as to enable the petitioner
to properly represent his case. Hence, there is no
option but to consider that present order of detention
is solely based upon a solitary offence. Therefore,
considering the settled legal position that no person
can be detained for a solitary offence, the Court has
no option but to quash and set aside the order of
detention, irrespective of quantity of LIQUOR found
from the detenue and other material that might have
been found in the affidavit-in-reply.

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8.2In view of above facts and circumstances, it
would be necessary to observe that the competent
authority is not precluded to disclose all material
facts while detaining the petitioner if so require for
any offence that he might commit hereinafter. In other
words, though impugned order is quashed and set aside
at present, it would not come in way of the competent
authority for quoting such FIRs and order of
detention, thereby to treat petitioner as a habitual
offender in case of commission of offence repeatedly.

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8.3No doubt, neither the possibility of
launching of a criminal proceedings nor pendency of
any criminal proceedings is an absolute bar to an
order of preventive detention. But, failure of the
detaining authority to consider the possibility of
either launching or pendency of criminal proceedings
may, in the circumstances of a case, lead to the
conclusions that the the detaining authority has not
applied its mind to the vital question whether it was
necessary to make an order of preventive detention.
Since there is an allegation that the order of
detention is issued in a mechanical manner without
keeping in mind whether it was necessary to make such
an order when an ordinary criminal proceedings could
well serve the purpose. The detaining authority must
satisfy the court that the question too was borne in
mind before the order of detention was made. In the
case on hand, the detaining authority failed to
satisfy the court that the detaining authority so bore

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the question in mind and, therefore, the court is
justified in drawing the inference that there was no
application of mind by detaining authority to the
vital question whether it was necessary to
preventively detain the detenu. It is also fruitful to
refer to the decision of the Hon’ble Apex Court
rendered in the case of Rekha V/s. State of Tamil Nadu
through Secretary to Government and another reported
in (2011)5 SCC 244 wherein, it is observed by the
Hon’ble Apex Court that if a person is liable to be
tried, or is actually being tried for a criminal
offence but the ordinary criminal law will not be able
to deal with the situation, then and only then,
preventive detention be taken recourse to.

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9As a result of hearing and perusal of the
record, it appears that the material that was
available with the detaining authority was the
offences registered against the detenu and on that
basis, it cannot be said that the activity of the
detenu has become a threat to the maintenance of
'public order' and 'public health'. Mere involvement
of the detenu in such activity may not amount to
dangerous activity by the detenu and mere mention of
them, unless supported by any evidence, cannot be said
to be material germane for the purpose of arriving at
the subjective satisfaction that the activity of the
detenu is prejudicial to the maintenance of 'public
order' and 'public health'. For the sake of
repetition, the commission of offence does not exhibit
or disclose that the petitioner is doing infraction of

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law in an organized or systematic

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manner so as to come to the conclusion that there is
no alternate but to preventively detain the
petitioner.

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10In the result, the petition is allowed. The
impugned order, if any passed by the respondent
authority pursuant to FIR being Prohibition C.R. No.
5033 of 2014 registered with Maninagar Police Station,
Ahmedabad City, is hereby quashed and set aside. The
detenu, if detained, is ordered to be set at liberty
forthwith if not required in any other case. Rule is
made absolute accordingly. Direct service is
permitted.

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* Pansala

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Madhusudan Maleshyam Vadnal v. Commissioner of Police

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Madhusudan Maleshyam Vadnal v. Commissioner of Police

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