SCA/9242/2004 of PRAVIN KANTIBHAI KOLI PATEL Vs DISTRICT MAGISTRATE,NAVSARI on 28 December 2004

1. Whether Reporters of Local Papers may be allowed : YES

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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?

-------------------------------------------------------------- PRAVIN KANTIBHAI KOLI PATEL

Versus

DISTRICT MAGISTRATE,NAVSARI

-------------------------------------------------------------- Appearance:

1. Special Civil Application No. 9242 of 2004

MS BANNA S DUTTA for Petitioner No. 1 MS HB PUNANI, AGP for Respondent No. 1-3 RULE SERVED for Respondent No. 2

-------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH

Date of decision: 28/12/2004

ORAL JUDGEMENT

1. Heard ld. counsel Ms. Banna Dutta for the petitioner detenu and ld. AGP Ms. HP Punani for the other side. Affidavit-in-reply on behalf of Detaining Authority & District Magistrate, Navsari, tendered today by ld. AGP Ms. Punani is taken on record.

2. By this petition under Article 226 read with Articles 21 & 22(5) of the Constitution of India, the petitioner detenu has challenged the legality and validity of the order of detention dated 10.05.2004 passed by the District Magistrate, Navsari in exercise of the powers conferred on him by Section 3(2) of The Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the PASA Act) against the petitioner-detenu. The petitioner detenu has been branded as "boot-legger" as defined under Sec.2(b) of the PASA ACt.

3. The grounds for detention supplied to the detenu petitioner indicate that the petitioner was found involved in solitary single offence punishable under Sections 66B, 65AE, 81,116B of the Bombay Prohibition Act being Jalalpore Police Station II. CR No. 21/2004 registered against the petitioner detenu on 09.01.2004. The petitioner detenu is the one of the co-accused of the aforesaid crime. In connection with the said offence, the petitioner detenu was arrested on 03.03.2004 and on 10.03.2004, he was enlarged on bail by the competent authority. It is recorded by the authority that the petitioner is a "boot-legger" and is involved in the activities dangerous to the society. Of course, no formal statements of the witnesses claiming privilege have been recorded in the present case.

Conclusion

4. The petitioner has challenged the legality and validity of the order of detention on number of grounds as mentioned in the memo of the petition. Ld. counsel Ms. Banna Dutta for the petitioner, has taken this Court through the contentions raised in the petition. However, she has focussed arguments mainly on two grounds. The first ground pressed into service by ld. counsel for the petitioner detenu is that the petitioner has been wrongly branded as "bootlegger" and his activities are dangerous to maintenance of public order, as he was involved in solitary offence under Bombay Prohibition Act. The second ground pressed into service is that as per the settled legal position of the decision of the Apex Court in the case of Sohanlal Surajram Visnoi v/s State of Gujarat & Ors., 2004(2) GLR 1051, the impugned order of detention requires to be quashed as the case the present case is squarely covered by the ratio of the aforesaid decision.

5. I have gone through the above-cited decision. For the sake of convenience, I would like to quote relevant paras 4 & 5 of the said decision:- "4. Article 22(3) of the Constitution of India expressly provides that the safeguards contained in Art.22(1) and 22(2) of the Constitution are not to apply to preventive detention. Article 22(4) of the Constitution provides and opens with double negative, put in positive form, and in its real substance, means that a law which provides for preventive detention for a period longer than three months, shall contain all the provisions prescribed in clauses (4) and (5) of Article 22 of the Constitution. Article 22(5) of the Constitution prescribes that when any person under a preventive detention law is detained, the authority making the order, shall as soon as may be, communicate to such person, the grounds on which the order has been made, and shall afford him with the earliest opportunity of making a representation against the order. Article 22(5)

of the Constitution is of general importance and operation in respect of every detention order made under any preventive detention law.

5. In this group of petitions, all the

detenus, except one in Special Civil Application No.825 of 2003, are treated and described as "bootleggers" as defined under Sec.2(b) of the P.A.S.A. Act and only one offence is registered against each detenu under the provisions of the Bombay Prohibition Act, 1949. Whereas in Special Civil Application No.825/2003, the detenu is treated as "dangerous person" as defined in Sec.2(c) of the P.A.S.A. Act, and in this case also, a solitary incident is made basis for passing the detention order against him."

6. In view of above-settled legal position, the present petition requires to be allowed. Ms.Dutta has also submitted that detaining authority has wrongly exercised the powers vested in it under Sec.9(1) of the PASA Act. No statements of witnesses claiming privilege under Sec.9(2) of the PASA Act have been recorded. Even after going through the affidavit-in-reply tendered today on behalf of the respondent by ld. AGP Ms. Punani, it is difficult to accept that the order is otherwise sustainable. So, accepting the ratio and reasons assigned by this Court in the above-cited decision, impugned order of detention requires to be quashed and set aside.

7. It has also been submitted that the impugned order of detention requires tobe quashed on the ground of delay in passing the order of detention inasmuch as last case registered against the detenu is dated 09.01.2004 and no statements of any witnesses have been recorded. The petitioner was arrested on 03.03.2004 and was released on bail on 10.03.2004. So, in view of settled legal position, last date of registration of offence is considered more relevant and so it can be said that there is a delay of about 4 months in passing the order of detention. Even from the date of release of the detenu on bail i.e. on 10.03.2004, there is nearly about 2 months delay in passing the order of detention. So, on this ground also, the order of detention requires to be quashed and set aside.

8. For the reasons aforesaid, this petition is allowed. Impugned order of detention dated 10.05.2004 passed by the District Magistrate, Navsari is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute.

Direct Service is permitted.

�����[ C. K.BUCH, J]

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