SCA/6403/2001 of BHARAT ALIAS BHAVESH SAVJIBHAI GOYANI Vs COMMISSIONER OF POLICE on 27 December 2001

1. Special Civil Application No. 6403 of 2001

MR PRAVIN GONDALIYA for Petitioner No. 1 MR SS PATEL AGP for Respondents No. 1-3

-------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA

Date of decision: 27/12/2001

ORAL JUDGEMENT

The petitioner has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as `the Act of 1985') by the order dated 22/6/2001 passed by the Police Commissioner, Surat City and he has been declared as bootlegger.

2. It is a settled principle of law that in order to bring a person within the expression "dangerous person" as defined in clause (c) of section 2 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short `the Act of 1985'), there should be positive materials to indicate that such person is habitual of committing or attempting to commit or abetting the commission of offences which are punishable under Chapter XVI or XVII of Chapter V of the Arms Act and that single or isolated act falling under the said Chapters cannot be characterised as a habitual acts as envisaged in section 2(c) of the PASA Act. Further, besides a person being a dangerous person, his activities should also fall within the ambit of expression `public order'. A distinction has to be drawn between the `law and order' and `maintenance of public order'. A reference may be made of M.J.Shaikh V. M.M. Mehta, Commissioner of Police & Ors., reported in 1995 (2) GLR 1268.

3. I have heard learned advocate for the petitioner and also perused the material on record. The learned advocate for the petitioner has submitted that the detaining authority has passed the detention order relying upon seven offences registered against the petitioner under the Indian Penal Code, and also relying upon teh statements of witnesses recorded by the detaining authority. The learned advocate for the petitioner has drawn my attention to the last two lines of the grounds of detention (page 18 of the compilation), in which the detaining authority has stated that the copies of the documents will be provided afterwards, from which itself it is clear that the detaining authority has not supplied the necessary documents relying upon which the detaining authority has passed the order and there is no evidence on record showing that the necessary documents relying on which the detention order has been passed by the detaining authority has been supplied by the detaining authority to the petitioner and thereby the detaining authority has prevented the petitioner from making an effective representation, as when the detaining authority has relied upon the said documents for the purpose of passing the order of detention against the detenu, it is the duty of the detaining authority to provide such documents to the petitioner and by not providing the necessary documents itself shows non-application of mind on the part of the detaining authority. However, the detaining authority has failed to discharge his duty. Even no affidavit has been filed by the State authority. It has been held in a judgment delivered by this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat and Ors.

reported in 2000(1) G.L.H. 393 as under:

"Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever an order of detention is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority".

4. Since the material documents, relying on which the impugned detention order has been passed by the detaining authority, have not been supplied by the detaining authority to the petitioner, nor affidavit has detaining authority, have not been supplied by the detaining authority to the petitioner, nor affidavit has been filed either by the detaining authority or by the State authority explaining the action of the detaining authority for not providing the documents on which the detaining authority has relied upon while passing the impugned detention order, the petitioner is prevented from making an effective representation and hence the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points.

5. The petition is allowed. The impugned order of detention dated 22/6/2001 passed against the detenu is hereby quashed. The detenu namely Bharat alias Bhavesh Savjibhai Goyani is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute with no order as to costs. D.S.

Permitted.

�����(R.P.DHOLAKIA,J.)

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