AHMEDHUSSAIN SHAIKHHUSSAIN © AHMED KALIO versus COMMISSIONER OF POLICE, AHMEDABAD & ANR.

Citation: [1989] SUPP. 1 S.C.R. 177 · Decided: 19-09-1989 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Case Allowed

Judgment (excerpt)

AHMEDHUSSAIN SHAIKHHUSSAIN © AHMED KAUO 
V, 
COMMISSIONER OF POLICE, AHMEDABAD & ANR. 
SEPTEMBER 19, 1989 
[RANGANATH MISRA AND G.L. OZA, JJ.] 
Gujarat Prevention of Anti-Social Activities Act, 1985: Sections 3 
and 9-Detention Order-Satisfaction of detaining authority-Not 
open to judicial review-Disclosure of adequate facts to enable full and 
adequate representation-Necessity for. 
The petitioner was directed to be detained under section 3(2) of 
the Gujarat Prevention of Anti-social Activities Act, 1985. In the 
grounds of detention it was alleged that the petitioner was conducting 
anti-social activities of illegally storing indigenous and foreign liquor in 
A 
B 
c 
his possession and selling it by himself and through his men and that he 
and his men beat innocent citizens thereby creating an atmosphere of D 
fear and terror and he had thus become obstructionist in the main-
tenance of public order. Reference was made to a previous order of 
detention which had-been set aside by the High Court, and to the fact 
that notwithstanding the previous detention, the petitioner continued to 
carry on his crintinal and anti~social activities affecting maintenance of 
public order. It was further stated in the grounds that the detaining 
E 
authority had considered taking action_against the petitioner u/s. 93 of 
the Prohibition Act for good conduct, and under sections 56B and 57(c) 
of the Bombay Police Act for his externment, but all these steps were 
either found not feasible or adequate. It was then stated that there was a 
possibility of the petitioner, who was in jail, being released on bail and 
continuing his criminal activities, and to prevent the same there was no 
F 
other alternative except to pass the order of det_ention. 
Allowing the writ petition and quashing the order of detention this 
Court, 
HELD: (1) The satisfaction of the detaining authority is not open G 
to judicial review but a citizen is entitled to protection within the mean-
ing of Article 22(5) of the Constitution of the procedural guarantees 
envisaged by law, and the Court frowns upon any deviation or infrac-
tion of the procedural requirements. [184A-B] 
(2) The fact that the detenu was in jail at the time the order of H 
177 
178 
SUPREME COURT REPORTS 
[ 1989] Supp. 1 S.C.R. 
A detention was made and the possibility of his release from jail being 
made•a ground of detention is not approved of by this Court. ll84CJ 
B 
Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232; 
Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., [1986] 4 SCC 416 
and Smt. Shashi Aggarwal v. State of V. P., A.l.R. 1988 SC 596, referred to. 
(3) The detaining authority must disclose in a case where 
the detenn is already in jail that there is cogent and relevant 
material constituting fresh facts to necessitate making of an order of 
detention. [184F] 
Abdul Razak Abdul Wahib Sheikh v. Shri S.N. Sinha, Commis-
C 
sioner of Police, Ahmedabad & Anr.,, J.T. 1989 I SC 478 and Ramesh 
v. State of Gujarat, J .T. 1989 3 SC 279, referred to. 
(4) There is a wide gap between law and order and public order. 
The criminal offence may relate to the field of law and order but such an 
offence would not necessarily give rise to a situation of public order. 
D 
Depending upon peculiar situations, an act which may otherwise have 
been overlooked as innocuous might constitute a problem of public 
order. Selling of liquor by the petitioner would certainly amount to an 
offence under the Prohibition Act but without something more would 
not give rise to a problem of public order. Similarly commission of any 
other criminal offence-even assault or threat of assault-would not 
E 
bring the matter within the ambit of public order. [I85B-C] 
(5) Disclosure of adequate facts to enable a full and adequate 
representation to the Preventive Detention Board is one of the positive 
guarantees within the scope of Article 22(5) of the Constitution. In the 
present case the grounds of detention show that the allegations are more 
F 
or less vague and have the effect of making it difficult for the petitioner 
to make an adequate representation. I 185D-E] 
A.K. Roy's case, [1982] l SCC 272, referred to. 
(6) The grounds of detention show how helpless the authorities 
G feel in the matter of enforcing prohibition within the State. ll86B] 
· (7) It is perhaps necessary to indicate that the provisions of the 
Prohibition Act of 1949 or the Bombay Police Act should be suitably 
amende

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