SCA/5131/2001 of SURESH @ KALU PRITAMDAS LALWANI SINDHI Vs STATE OF GUJARAT on 20 December 2001

1. Special Civil Application No. 5131 of 2001

MR HR PRAJAPATI for Petitioner No. 1 MR SS PATEL AGP for respondents.

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

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 order dated 5/6/2001 passed by the Commissioner of Police, 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 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 two offences registered against the detenu Bombay Prohibition Act and also relying upon the statement of the witnesses recorded by the detaining authority. The thereafter, the petitioner made a detailed representation to the concerned authorities on 26/6/2001, which has been compilation of the petition. The learned advocate for the petitioner has further submitted that the concerned authority has rejected the said representation on 30/6/2001, but the same has not been communicated to the petitioner immediately, but the authority has communicated the same to the detenu on 9/7/2001 informing him that his representation has been rejected and, therefore, according to the advocate for the petitioner, there is a delay in communication of the rejection of the representation of the petitioner, which is unconstitutional. In support of his say, the learned advocate for the petitioner has placed reliance upon the decision of the Hon'ble Supreme Court reported in AIR 1981 SC 1126, in which the Honourable Supreme Court has held as under :- "We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and

communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. We order accordingly, allow the appeal and direct that the appellant be set at liberty forthwith."

4. Since the detaining authority has not communicated the decision of the representation of the petitioner promptly, 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 5/6/2001 passed against the detenu is hereby quashed and set aside. The detenu namely Suresh alias Kalu Pritamdas Lalwani Sindhi 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.)

rafik