SCA/6214/2001 of NOORMOHAMMED HUSSAINBHAI SANDHI Vs STATE OF GUJARAT on 20 December 2001

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 6214 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 -------------------------------------------------------------- NURMAMAD HUSHENBHAI SANDHIVersus STATE OF GUJARAT

-------------------------------------------------------------- Appearance: MR MM TIRMIZI for Petitioner No. 1 MR SS PATEL AGP for Respondents No. 1-3

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

Date of decision: 20/12/2001

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 26/5/2001 passed by the Police Commissioner, Rajkot 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 in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad &

3. I have heard learned advocate for the petitioner and also perused the material on record. According to learned advocate for the petitioner, the detenu has submitted a representation to the concerned authority on 15/6/2001 through advocate and thereby demanded copies of certain documents like statements of Head Constable Baldevsinh, copies of statements of PI GK Rana, copies of statements of Head Constable Bhanabhai, copies of statements of Amrutgiri Ganpatgiri for the FIR registered as Prohibition CR No.210 of 2001 with Bhaktinagar Police Station, Rajkot City. The detaining authority though duly received the said representation of the petitioner, has not supplied the copies of the documents demanded by the petitioner - detenu and only supplied the copies of statement of Amrutgiri Ganpatgiri, that too vide letter dtd.30/6/2001 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. 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 though the specific demand has been made by 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 26/5/2001 passed against the detenu is hereby quashed. The detenu namely Nurmamad Hushenbhai Sandhi 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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