Material Not Sufficient To Prove That Activities Harm 'Public Order': Gujarat High Court Sets Free Man Detained For Being A "Bootlegger"

The Gujarat High Court on Monday (October 7) quashed a detention order issued by Ahmedabad's Police Commissioner "preventively detaining" a man accused of being a bootlegger and carrying out activities which adversely affect public order under the Gujarat Prevention of Anti-social Activities Act, 1985. 

In doing so, the high court directed that the detenue–Bhanabhai Babubhai Solanki be set free forthwith, while observing that the material on record was not sufficient to prove that Solanki's alleged anti social activities could adversely affect maintenance of public order as per the Act. 

A division bench of Justice Ilesh J Vora and Justice SV Pinto in its order said, "After careful consideration of the material, we are of the considered view that on the basis of a prohibition case, the authority has wrongly arrived at the subjective satisfaction that the activities of the detenue could be termed to be acting in a manner 'prejudicial to the maintenance of public order'". 

Background

The order was passed in a plea moved on Solanki's behalf challenging a September 21 detention order issued by the city police commissioner preventively detaining him "as a bootlegger" as defined under Section 2(b) of the 1985 Act. The issue that arose before the high court was whether the detention order passed by the Detaining Authority in exercise of his powers under the provisions of the 1985 Act is sustainable in law. 

Section 2(b) defines a bootlegger as a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force.

It also includes a person who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any other material whatsoever in furtherance or support of the doing of any of these activities mentioned in the provision by or through any other person, or who abets in any other manner the doing of any such thing. 

Further Section 3 (4) states that for the purpose of this provision, a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such this person is engaged in or is preparing for engaging in any activities whether [as a bootlegger or common gambling house paper or and person] or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.

Meanwhile the explanation to this provision states that public order can be "deemed or likely to be adversely affected" if the activities of the person referred in the provision directly or indirectly, is causing or is likely to cause any harm, danger/alarm/feeling of insecurity among the general public or a grave/widespread danger to property or public health.

Findings

The bench referred to the Supreme Court's decision in Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad (1989)  wherein the detention order was made on the basis of the registration of the two prohibition offences. The bench noted that the apex court after referring to its decision in Pushkar Mukherjee Vs. State of Bengal (1969) had observed that "mere disturbance of law and order leading to detention order is thus not necessarily sufficient for action under preventive detention Act".

Taking note of the Supreme Court judgments, the bench said that in present case, the detaining authority, in its "opinion" had failed to substantiate that the alleged "antisocial activities" of the petitioner adversely affect or are likely to affect adversely the maintenance of public order.

"For the reasons recorded, we are of the considered opinion that, the material on record are not sufficient for holding that the alleged activities of the detenue have either affected adversely or likely to affect adversely the maintenance of public order and therefore, the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law. Accordingly, this petition stands allowed. The order impugned dated 21.09.2024 passed by the respondent authority is hereby quashed. We direct the detenue to be set at liberty forthwith, if he is not required in any other case," the bench underscored. 

Case title: ALPESH S/O ARVINDBHAI BAROT THROUGH DHARMISHTA ALPESHBHAI BAROT v/s STATE OF GUJARAT & ORS. 

LL Citation: 2024 LiveLaw (Guj) 151

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