SCA/5454/2001 of MUKTABEN WIFE OF RAMESHBHAI BHANUBHAI KOLI Vs THE DISTRICT MAGISTRATE on 5 December 2001

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 5454 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 -------------------------------------------------------------- MUKTABEN WIFE OF RAMESHBHAI BHANUBHAI KOLIVersus THE DISTRICT MAGISTRATE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5454 of 2001 MR BC DAVE for Petitioner No. 1 MR SS PATEL AGP for Respondents No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA

Date of decision: 05/12/2001

ORAL JUDGEMENT

The present petition has been filed by the wife of the detenu. The detenu 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 16/5/2001 passed by the District Magistrate, Rajkot 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 in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491.

3. I have heard learned advocate for the petitioner and also perused the material on record. According to learned advocate for the petitioner, the detaining authority has passed the detention order relying upon the solitary offence registered against the detenu before Gondal Taluka Police Station vide CR No.5034 of 2001 for the offences punishable under Sections 66(B), 65(E) and 116(E) of Bombay Prohibition Act. The said offence was registered on 27/3/2001 and the detaining authority has passed the detention order on 16/5/2001. Thus, there is a delay in passing the detention order. Learned AGP has fairly admitted the same. Learned advocate for the petitioner has also stated that only one offence has been registered under the Prohibition Act and, therefore, petitioner is not habitual offender. 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."

4. It appears that last offence is registered

Arguments

against the detenu on 27/3/2001 and the order of detention was passed on 16/5/2001 on the basis of this offence and hence, there is a delay of more than one and half months in passing the order. No affidavit has been filed either by the detaining authority explaining satisfactorily 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. In view of the above, the petition is allowed. The order of detention dated 16/5/2001 passed against the detenu is hereby quashed and set aside. The detenu namely Rameshbhai Bhanubhai Koli 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. D.S. Permitted.

�����(R.P.DHOLAKIA,J.)

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