SCA/4455/2001 of NATVARJI SHANKARJI THAKOR Vs COMMISSIONER OF POLICE on 18 December 2001

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 4455 of 2001

For Approval and Signature:

Hon'ble MR.JUSTICE R.P.DHOLAKIA

============================================================ 1. Whether Reporters of Local Papers may be allowed : NO

to see the judgements?

2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- NATVARJI SHANKARJI THAKORVersus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4455 of 2001 MS DR KACHHAVAH for Petitioner No. 1 MRS HANSABEN PUNANI, AGP for Respondents No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA

Date of decision: 18/12/2001

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 1-6-2001 passed by the Police Commissioner, Ahmedabad City, and he has been declared as bootlegger.

2. It is now well settled that unless the activities of a person as bootlegger has disturbed the maintenance of public order, he cannot be detained under the Act. Reliance is placed on a decision of the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491.

3. Heard learned advocate for the petitioner and the learned AGP for the State. Also perused the record. Learned advocate for the petitioner has submitted that only a single offence has been registered against the detenu at Naranpura Police Station being Prohi.C.R.No.5140/2001 dated 29-5-2001. Drawing my attention towards page 19 of the compilation, she has contented that when the order of detention was passed, the detenu was in judicial custody which aspect ought to have been considered by the authority while passing the detention order. In this connection, she has relied upon the case of Amritlal and Other Vs. Union Govt. Through Secy., Ministry of Finance and Others, AIR 2000 S.C. 3675 wherein it was held at Head note as under:

"Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (46 of 1988), S.3--Satisfaction of detaining authority--"Likelihood of detenu moving an application for bail"--not sufficient--It is different from "Likelihood to be released on bail"".

He has submitted that the petitioner is a co-detenu of an offence wherein another detenu-Vijaybhai Kalidas Mekwan has been released by this Court in Special Civil Application No.4433 of 2001 by the judgment and order dated 18-12-2001 and hence, present detenu should also be granted same benefit.

4. It seems that there is non-application of mind on the part of detaining authority in passing the detention order as the detenu was in judicial custody when the order of detention was passed which aspect has not been considered by the authority and hence, in view of the judgment rendered in Amritlal (supra), the continued detention of the detenu is illegal and the same cannot be sustained. Since a co-detenu has been released by this Court, on the ground of parity also, present detenu is entitled to be released.

5. The petition is allowed. The impugned order of detention dated 1-6-2001 passed against the detenu is hereby quashed and set aside. The detenu Natvarji Shankarji Thakor is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. �����(R.P.DHOLAKIA,J.)

radhan/