1. Heard the learned advocate for the petitioner and the learned AGP for the respondents.
2. The petitioner-detenue has preferred this petition under Article 226 of the Constitution of India, for appropriate writ, order or direction for quashing and setting aside the impugned order dated 12.12.2007 passed by the respondent No.2-Commissioner of Police, Ahmedabad City, in exercise of power under sub-section(2) of Section (3) of the Gujarat Prevention of Anti Social Activities Act, 1985 (ýSPASA Actýý for short) whereby the petitioner has been detained as a ýSbootleggerýý. In pursuance of the said impugned order, the petitioner is detained in Chotta-Udepur Sub-Jail.
3. From the grounds of detention, it appears that out of three offences, two Prohibition cases being CR Nos.801 of 2006 and 1311 of 2006 have been registered at South Prohibition Station and one case being CR 5218 of 2007 has been registered at Vatva Police Station, under the provisions of Sections 66B, 66E, and 66BCEF under the Bombay Prohibition Act, wherein a quantity of total 441 ltrs. of country made liquor were found from the possession of the detenue. On the basis of registration of these cases, the detaining authority held that the present detenue was carrying on activities of selling country made liquor which is harmful to the health of the public. It is held by the detaining authority that as the detenue is indulged in illegal activities, it is required to restrain her from carrying out further illegal activities, i.e. selling of liquor. The detaining authority has placed reliance on the above registered offences and statements of unnamed witnesses. In the opinion of this Court, the activities of the detenue can, by no stretch of imagination, be said to be disturbing the ýSpublic order.ýý It is seen from the grounds that a general statement that has been made by the detaining authority that consuming liquor is injurious to health. In fact, a perusal of the order passed by the detaining authority shows that the grounds which are mentioned in the order are in reference to the situation of ýSlaw and orderýý and not ýSpublic orderýý. Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind and the impugned order, therefore, deserves to be quashed and set aside.
4. Except the statements of some anonymous witnesses, there is no material on record which shows that the petitioner-detenue is carrying on activities of selling country made liquor which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat [(2001)(1)GLH 393)], having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this Court held that the cases wherein the detention order passed on the basis of the statements of the witnesses falls under the maintenance of ýSlaw and orderýý and not ýSpublic orderýý.
5. Applying the ratio of the above decisions, it is clear that before passing an order of detention of a detenue, the detaining authority must come to a definite finding that there is threat to the ýSpublic orderýý and it is very clear that the present would not fall within the category of threat to ýSpublic orderýý. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.
6. In the result, this Special Civil Application is allowed. The impugned order of detention passed by the 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. Rule is made absolute accordingly. Direct service is permitted Sreeram.
(M.D.Shah, J.)