SCA/4473/2001 of RAVAL GAURANGKUMAR PRAHLADBHAI Vs STATE OF GUJARAT on 18 December 2001

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 4473 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 -------------------------------------------------------------- RAVAL GAURANGKUMAR PRAHLADBHAIVersus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4473 of 2001 MR PK JANI for Petitioner No. 1 MRS HANSABEN PUNANI, AGP for Respondents No. 1-5

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

Date of decision: 18/12/2001

ORAL JUDGEMENT

By means of filing this petition, the petitioner has challenged the order of detention dated 2-6-2001

passed by the District Magistrate, Mehsana.

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 at length and learned AGP, Mrs.Hansaben Punani for the respondents. I have also perused the material on record. Drawing my attention towards para 15 page 7 of the memo of petition, learned advocate for the petitioner has stated that the last incident of committing theft by the detenue was alleged to have taken place on 19-12-2000 whereas the order of detention was passed on 2-6-2001 relying on this offence and hence, there is a delay of five and half months in passing the order. Learned AGP has fairly admitted the same. He has relied upon a judgment delivered by this Court reported in 1997(1) G.L.H. page 381 in the case of Elesh Nandubhai Patel Vs. Commissioner of Police, Ahmedabad City and Ors. more particularly at para 21 which reads as under:

"There appears to be some substance in the contention of the petitioner that these two unregistered cases have been referred only with a view to cover up the gap or to give life to a stale case. This unexplained delay makes a ground of detention not proximate, vitiating the order of detention itself. If I am to buttress my findings, I would say the reference may be made to the decision of the Supreme Court in Anand Prakash V. State of U.P. reported in AIR

1990 SC 516 and Pradeep Nilkanth Vs. S.

Ramamurthy reported in 1993(2) Suppl. SCC 61."

Arguments

the petitioner was on 19-12-2000 and order of detention was passed on 2-6-2001 based on this offence and hence, there is a delay in passing the order. No satisfactory explanation has been putforth by the detaining authority by way of filing an affidavit justifying the reasons for the delay caused in passing the order of detention. Therefore, in view of the above judgment relied upon by the learned advocate for the petitioner, the order of detention is illegal and the same cannot be sustained.

was passed on 2-6-2001 based on this offence and hence, there is a delay in passing the order. No satisfactory explanation has been putforth by the detaining authority by way of filing an affidavit justifying the reasons for the delay caused in passing the order of detention. Therefore, in view of the above judgment relied upon by the learned advocate for the petitioner, 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 2-6-2001 passed against the detenu is hereby quashed and set aside. The detenu Raval Gaurangkumar Prahladbhai 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.)

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