SCA/6144/2001 of MUNNA @ MANU ABHESINGH SOLANKI Vs THE COMMISSIONER OF POLICE on 27 November 2001

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

-------------------------------------------------------------- MUNNA @ MANU ABHESINGH SOLANKI

Versus

THE COMMISSIONER OF POLICE

-------------------------------------------------------------- Appearance:

1. Special Civil Application No. 6144 of 2001 MR CHETAN B RAVAL for Petitioner No. 1 MRS. HANSA PUNANI AGP for Respondents No. 1-3

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

Date of decision: 27/11/2001

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 14/5/2001 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. 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 Police Commissioner, Ahmedabad city, Ahmedabad and copy of which also forwarded to the Deputy Secretary, Home Minister, State of Gujarat and the Secretary, PASA Advisory Board, Home Department, Sachivalaya, Gandhinagar, vide representation dtd.2/7/2001 and it appears that same has not been considered by the authority and no explanation has been put forward by the authority to that effect. 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".

3. Since no affidavit has been filed either by the detaining authority or by the State authority and also since no explanation has been put forth by the said authority for not deciding the representation of the detenu, the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points.

4. The petition is allowed. The impugned order of detention dated 14/5/2001 passed against the petitioner-detenu is hereby quashed and set aside. The

detenu namely Munna alias Manu Abhesing Solanki (Darbar) 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.

�����(R.P.DHOLAKIA,J.)

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