SCA/7084/2001 of RUPESH MANSUKHBHAI DHOBI Vs STATE OF GUJARAT on 28 December 2001

1. Special Civil Application No. 7084 of 2001 MS SUBHADRA G PATEL for Petitioner No. 1 MRS HANSABEN PUNANI, AGP for Respondents No. 1-3

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

Date of decision: 28/12/2001

ORAL JUDGEMENT

By means of filing this petition, the petitioner has challenged the order of detention dated 30-6-2001

passed by the Police Commissioner, Rajkot City.

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. Heard learned advocate for the petitioner and learned APP for the State. Also perused the material on record. It is submitted by the learned advocate for the petitioner that the detaining authority has relied upon six cases, which is reflected on page 15 (Annexure-B), in passing the order of detention. According to learned advocate for the petitioner, the detenu has submitted a representation to the authority and which has been received by the authority on 16-7-2001 and though it has been rejected on 26-7-2001 same has been communicated to the detenu on 30-7-2001 and hence, there is a delay in deciding the representation and communicating the same to the detenu. Letter of communication dated 30-7-2001 sent by the authority is ordered to be taken on record. He has relied upon the case of Harish Pahwa Vs. State of U.P. and others, AIR 1981 S.C. 1126, more particularly para 3 which runs as under:

"The representation made by a detenu has to be considered without any delay. The Supreme Court does not look at equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital importance. It is the duty of the State to proceed to determine representations with the

utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. Where this is not done the detention has to be declared unconstitutional."

5. In the present case, it appears that the detenu has sent the representation and which was received by the authority on 16-7-2001 and though said representation has been rejected by the authority on 26-7-2001, same has been communicated to the detenu on 30-7-2001. However, no satisfactory explanation has been putforward by the authority for the delay caused in communicating the decision to the detenu. In view of the aforesaid judgment of the Apex Court, the order of detention is illegal and the same cannot be sustained.

6. The petition is allowed. The impugned order of detention dated 30-6-2001 passed against the detenu is hereby quashed and set aside. The detenu Rupesh Mansukhbhai Dhobi is hereby 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.)

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