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PETITIONER: KANUJI S. ZALA

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT:       04/05/1999

BENCH: G.T.Nanavati, S.N.Phukan

JUDGMENT:

Nanavati.J.

       The petitioner is challenging in this petition under Article  32 of the Constitution the order of detention dated 29.1.98 passed  by  the  District  Magistrate,  Mehsana,  in exercise  of his powers under Section 3 of the Prevention of the  Gujarat  anti  Social  Activities  Act,  1985  for  his detention thereunder.

       In the grounds of detention it is  stated  that  the petitioner  is a Bootlegger as he is involved in the illegal activity of selling  liquor.  Five  cases  have  been  filed against him under the Bombay Prohibtion Act. Moreover, three witnesses  have  given statements wherein they have referred to the activity of the  petitioner  of  selling  liquor  and indulging  in violence for carrying on the said activity. It is further stated in the grounds that the said  activity  of the  petitioner  is prejudicial to the maintenance of public order.

       The  order  of detention is challenged on the ground that there was no material before the District Magistrate on the basis of which he could have genuinely satisfied himself that the activity of the petitioner was prejudicial  to  the maintenance of  public  order.    It  was  submitted  by the learned counsel that the statements of the  three  witnesses merely refer to some stray incidents of beating which at the highest  can  be said to have affected law and order and not public order.  In support of  her  submission,  the  learned counsel  relied  upon  three  decisions  of this Court in Om Prakash Vs.  Commissioner of Police & Ors.   -  1988  suppl. (2) SCC 576, Rashidmiya @ Chhava Ahmedmiya shaik Vs.  Police Commissioner, Ahmedabad  and  Anr.    -  1989 (3) 321 and in Piyush Kantilal Mehta Vs.  Commissioner of Police, Ahmedabad City and Anr.- 1989 Suppl.  (1) SCC 322.

       In  our  opinion  there  is  no  substance  in  this contention.   In  none of the three cases relied upon by the learned counsel the point whether public order can  be  said to  have  been  disturbed on the ground that the activity of the detinue was harmful  to  the  public  health  arose  for consideration.   It  appears  that in those three cases, the detaining authority  had  not  recorded  such  satisfaction. Moreover,  in  those  cases  the  detaining  authorities had referred to some incidents  of  beating  but  there  was  no

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material  to  show  that  as  a result thereof even tempo of public life was disturbed.   In  this  case,  the  detaining authority   has   specifically  stated  in  the  grounds  of detention that selling of liquor by the petitioner  and  its consumption  by  the  people of that locality was harmful to their health.  The detaining authority has also stated  that the statements of witnesses clearly show that as a result of violence  resorted  to  by  the petitioner even tempo of the public life was disturbed in those localities for some time. The material on record clearly shows  that  members  of  the public  of those localities had to run away from there or to go inside their houses and close their doors.

       What is required to be considered in such  cases  is whether  there  was  credible  material before the detaining authority on the basis of which a reasonable inference could have been  drawn  as  regards  the  adverse  effect  on  the maintenance of  public  order  as defined by the Act.  It is also well settled that whether the material  was  sufficient or  not  is  not  for  the  courts  to decide by applying an objective test as it is a matter of subjective  satisfaction of the  detaining  authority.   The observation made by this Court in Om Prakash Vs.  Commissioner of Police &  Ors.    - 1988 Supp.    (2) SCC 576 that "as in Piyush Mehta Case, the materials available on record in the present  case  are  not sufficient   and  adequate  for  holding  that  the  alleged prejudicial activities of the detenu  have  either  affected adversely  or  likely to affect adversely the maintenance of public order within the meaning of Section 4(3) of  the  Act and  as  such,  the order is liable to be quashed" are to be understood in the context of the facts of that case.

       As  already  stated  earlier,  in  this   case   the detaining   authority  has  specifically  mentioned  in  the grounds that the activity of the detinue was likely to cause harm to the public health and that by itself  is  sufficient to amount to affecting adversely the public order as defined by the Act.  The detaining authority has also stated that as a  result  of  resorting  to  violence by the petitioner for carrying on his bootlegging activity, even tempo  of  public order has  also disturbed on some occasions.  In view of the material on record it cannot be said that  the  satisfaction of   the   District  Magistrate,  in  this  behalf  was  not reasonable or genuine.

       As we do not find any substance in this petition, it is dismissed.