Gujarat High Court
SCA/3828/2001 of SUBHASHBHAI HIRABHAI PATEL Vs STATE OF GUJARAT on 27 November 2001
HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3828 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
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 3828 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 -------------------------------------------------------------- SUBHASHBHAI HIRABHAI PATELVersus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3828 of 2001 MR ANIL VARMA FOR MM TIRMIZI for Petitioner MRS HB PUNANI, AGP for Respondents No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA
Date of decision: 27/11/2001
ORAL JUDGEMENT
By means of filing this petition, the petitioner has challenged the order of detention dated 12-12-2000 passed by the District Magistrate, Valsad 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, order of detention has been passed on 12-12-2000 while the actual date of detention is 14-5-2001. It is submitted that the authority has relied upon two offences, one is registered at Atul Police Station as Prohi.III C.R. No.58 of 2000 dated 6-7-2000 and second is registered at Atul Police Station as Prohi.III C.R. No.70 of 2000 dated 27-7-2000 and relying upon the above two offences, order of detention has been passed on 12-12-2000 and there is a delay in passing the order of detention and hence, order of detention requires to be quashed and set aside.
Learned AGP has fairly admitted the same. He has 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."
4. It appears that last offence registered against the petitioner was dated 27-7-2000 and based on this offence, order of detention was passed on 12-12-2000 and hence, there is a delay in passing the order. No affidavit has been filed by the detaining authority explaining satisfactorily the delay caused in passing the order of detention. It has been held in a judgment
delivered by a Division Bench of 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". Since no affidavit has been filed either by the detaining authority or the State and also since the delay in passing the order has not been properly explained, order of detention is illegal and same cannot be sustained.
5. The petition is allowed. The impugned order of detention dated 12-12-2000 passed against the detenu is hereby quashed. The detenu-Subhashbhai Hirabhai Patel is 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.)
RADHAN/