SCA/6386/2001 of RAJU @ RAJU GENDI S/O RUPCHAND KRISHNANI SINDHI Vs STATE OF GUJARAT on 28 December 2001

1. Special Civil Application No. 6386 of 2001 MR HR PRAJAPATI for Petitioner No. 1

MR MR PRAJAPATI for Petitioner No. 1 MRS HANSABEN PUNANI, AGP for Respondents No. 1-3

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

Date of decision: 28/12/2001

ORAL JUDGEMENT

The petitioner 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 6-7-2001 passed by the Police Commissioner, 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 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 at length and learned AGP, Mrs.Hansaben Punani for the respondents. I have also perused the material on record. Learned advocate for the petitioner has stated that last offence registered against the petitioner was on 10-4-2001 and the order of detention was passed on 6-7-2001 relying on this offence and hence, there is a delay of about three months in passing the order. 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 on 10-4-2001 and order of detention was passed on 6-7-2001 based on this offence and hence, there is a delay of about three months in passing the order from the last registered offence. No satisfactory explanation has been putforth by the detaining authority for 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.

Conclusion

5. The petition is allowed. The impugned order of detention dated 6-7-2001 passed against the detenu is hereby quashed and set aside. The detenu Raju @ Raju Gendi, S/o Rupchand Krishnani 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. Direct service is permitted. �����(R.P.DHOLAKIA,J.)

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