Gujarat High Court
SCA/3830/2001 of SHARDABEN W/O PARBATJI THAKOR Vs STATE OF GUJARAT on 4 December 2001
HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3830 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
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 3830 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
-------------------------------------------------------------- SHARDABEN W/O PARBATJI THAKORVersus STATE OF GUJARAT
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1. Special Civil Application No. 3830 of 2001
MR EE SAIYED for Petitioner No. 1 MRS. HANSA PUNANI AGP for Respondents No. 1-3
-------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA
Date of decision: 04/12/2001
ORAL JUDGEMENT
The present petition has been filed by the petitioner detenu who 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, Banaskantha at Palanpur, and 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 detaining authority has passed the detention order relying upon the eight criminal cases which are registered against the petitioner under the Prohibition Act which are either pending for trial or for investigation. The learned advocate for the petitioner has further submitted that the last offence is registered against the petitioner for the offences punishable under sec.66(B), 65(E), 81 and 83 of Prohibition Act, registered before the Palanpur Taluka Police Station vide CR No. 73 of 2001. The said offence is registered on 13/3/2001. The learned advocate for the petitioner has submitted that the order of detention is passed against the petitioner on 16/5/2001. Thus there is a delay of more than two months in passing the order of detention. The learned advocate for the petitioner has relied 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
4. It appears that last offence registered against the detenu on 13/3/2001 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 two months in passing the order of detention. 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 Smt.Shardaben wife of Parbatji Thakor 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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