SCA/9197/2001 of CHANDRABHAN BHAIYALAL YADAV Vs STATE OF GUJARAT on 20 December 2001

1. Special Civil Application No. 9197 of 2001 MR AR SHAIKH for Petitioner No. 1

MRS HANSA PUNANI AGP for Respondents No. 1-3

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

Date of decision: 20/12/2001

ORAL JUDGEMENT

By means of filing this petition, the petitioner has challenged the order of detention dated 4/6/2001

passed by the Commissioner of Police, Surat City.

2. It is a settled principle of law that in order to bring a person within the expression "dangerous person"

as defined in clause (c) of section 2 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short `the Act of 1985'), there should be positive materials to indicate that such person is habitual of committing or attempting to commit or abetting the commission of offences which are punishable under Chapter XVI or XVII of Chapter V of the Arms Act and that single or isolated act falling under the said Chapters cannot be characterised as a habitual acts as envisaged in section 2(c) of the PASA Act. Further, besides a person being a dangerous person, his activities should also fall within the ambit of expression `public order'. A distinction has to be drawn between the `law and order' and `maintenance of public order'. A reference may be made of M.J.Shaikh V. M.M. Mehta, Commissioner of Police & Ors., reported in 1995 (2) GLR 1268.

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 seven criminal cases registered against the detenu under the Indian Penal Code. The last offence is registered on 20/3/2001 before the Pandesara Police Station vide CR NO.I-39 of 2001 for the offence punishable under Sections 457 and 380 of Indian Penal Code. The detaining authority has passed the detention order on 4/6/2001. Thus, there is a delay of more than two months in passing the detention order. No affidavit explaining the delay has been filed either by the detaining authority or by the State. Learned AGP has fairly admitted the same. The learned advocate for the petitioner 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

Arguments

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 the last offence is registered against the detenu on 20/3/2001 and the order of detention has been passed on 4/6/2001 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 or by the State 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 4/6/2001 passed against the detenu is hereby quashed and set aside. The detenu namely Chandrabhan Bhaiyalal Yadav 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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