SCA/3765/1999 of NAVRATAN CHANDULAL SHAH Vs STATE OF GUJARAT on 29 December 1999

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 -------------------------------------------------------------- NAVRATAN CHANDULAL SHAH

Versus STATE OF GUJARAT

-------------------------------------------------------------- Appearance: MR MH RATHOD for Petitioners HH PATEL AGP for Respondent No. 1 RULE NOT RECD BACK for Respondent No. 3

-------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE

Date of decision: 29/12/1999

ORAL JUDGEMENT

#. District Magistrate, Banaskantha at Palanpur passed an order on April 9, 1999 in exercise of power under section 3(1) of Prevention of Anti-Social Activities Act (for short "the PASA Act") detaining Navratan Chandulal Shah of Palanpur under the PASA Act against which the #. The grounds of detention indicate that the detaining authority took into consideration 10 theft cases registered against the detenue. The detaining authority arrived at a conclusion that the detenue is a "dangerous person" as defined under the PASA Act. Less drastic remedy in the form of externment proceedings under sections 56 or 57 of the Bombay Police Act are not possible to be resorted to as the petitioner may even after externment continue his activities. The authority therefore decided to exercise powers under the PASA Act.

#. The petitioner-detenue challenges the order of detention mainly on two grounds. The first ground being that of delay in passing the order of detention and the second ground being that there is non-application of mind on the part of the detaining authority while considering the less drastic remedy in the form of proceedings under section 57 of the Bombay Police Act which were non existent since all the cases registered against the detenue are pending trial and therefore that remedy was non existent. Under the circumstances, the order suffers from the vice of non-application of mind and may therefore be quashed and set aside.

#. Mr. Rathod, learned advocate appearing for the petitioner has restricted his arguments to the above two gronds only. He submitted that the last date of the last offence registered against the detenue is 11th October,1998. The detenu was arrested in that case on 11th November, 1998 and was bailed out on the same day whereas the detention order is passed on 9th April, 1999. Therefore, there is gross delay in passing the detention order which remains unexplained.

4.1 Mr. Rathod submitted that the detaining authority has observed in the grounds of detention that the externment proceedings under sections 56 & 57 cannot be resorted to as the petitioner may continue his activities from other districts also. According to Mr. Rathod, the externment proceedings under section 56 are non-existent because the cases considered against the petitioner are pending trial and there is no quesiton of initiating such proceedings. This reflects non-application of mind on part of the detaining authority which would vitiate the order of detention. Mr. Rathod therefore urged that the petition may be allowed.

respondent authority has opposed this petition. He submitted that the delay has occurred in govt. proceedings because of the heavy workload. However, he tried to defend the order by submitting that the detaining authority has passed the order after being subjectively satisfied about the nefarious activities of the detenu and the need to prevent him from indulging in such activities. Under the circumstances, he urged that the petition may be dismissed.

#. Considering the rival side contentions, at the outset, it may be noted that none of the respondents have filed any affidavit-in-reply and no attempt is made to explain the delay caused in passing the detention order.

#. Admittedly, the detenue was last booked in Palanpur Taluka CR No. I 235/98 which was the offence dated 10th October, 1998. In respect of that case, the detenue was arrested on 11.11.98 and released on bail on that very day. Thereafter, till the order is passed, there appears not any case registered against the detenu. The order is based on these offences only. Therefore, there is a long gap of about 5 months between the last offence and the order of detention. The causal connection is therefore, snapped and there is nothing to indicate that it is not snapped. Under the circumtances, the delayed order would vitiate the detention.

#. Mr. Rathod at this stage submits that he doesnot press for verdict on the second ground argued byhim.

#. In view of the above discussion, the petition deserves to be allowed and the same is allowed. The order passed by the District Magistrate, Banaskantha at Palanpur dated 9th April, 1999 detaining the petitioner-detenu - Navratan Chandulal Shah is hereby quashed and set aside. The petitioner-detenu-Navratan Chandulal Shah be set at liberty forthwith, if not deserves to be allowed and the same is allowed. The order passed by the District Magistrate, Banaskantha at Palanpur dated 9th April, 1999 detaining the petitioner-detenu - Navratan Chandulal Shah is hereby quashed and set aside. The petitioner-detenu-Navratan Chandulal Shah be set at liberty forthwith, if not required under any other case. Rule made absolute with no order as to costs.

�����(A.L. DAVE, J.)

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