IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6761 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 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? -------------------------------------------------------------- FIROZ ALIAS RAJAK ABDUL MAJID SHAIKH Versus COMMISSIONER OF POLICE SURAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6761 of 2004 MS DR KACHHAVAH for Petitioner No. 1 MR KAMLESH KACHHAVAH for Petitioner No. 1 MR AY KOGJE, LD.AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 12/08/2004 ORAL JUDGEMENT 1. By filing this petition, the petitioner-detenu, has challenged his detention order dated 19.2.2004, by which he is detained as a "dangerous person", under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985 ( "PASA", for short). Along with the order, the petitioner has also been served with the grounds of detention. 2. In the grounds of detention, there is a reference about two criminal cases, which are registered against the petitioner under the provisions of sec. 379 and 114 of the Indian Penal Code. It is alleged that, the petitioner is committing theft of gold chain and silver ornaments. After recording subjective satisfaction and after recording the statements of witnesses, whose names have not been disclosed to the petitioner, the Authority has detained him under PASA. The said detention order is challenged by the petitioner by way of this petition. 3. Learned advocate for the petitioner submitted that, only two criminal cases are registered against the petitioner under the Indian Penal Code. It is submitted that, from the aforesaid criminal cases, it cannot be said that the activity of the petitioner is such which is injurious to public health or that he has violated any public order by committing offence under the Indian Penal Code. 4. Learned advocate for the petitioner further submitted that the last case registered against the petitioner is of dated 17.7.2003, and as against that the detention order was passed on 19.2.2004 and, therefore, there is a delay of about more than seven months in passing the detention order from the last registered offence. It is submitted that, in view of this long delay in passing the detention order from the last registered offence, the petitioner is required to be released on this ground. 5. In this connection, learned advocate for the petitioner has relied on the decision of this Court in the case of Elesh Nandubhai Patel v. Commissioner of Police reported in 1997(1) GLH 381, wherein this Court has observed as under in paragraph 21:- "para.21 In the instant case, the last registered case is of May 20, 1996. The petitioner detenu was granted anticipatory bail by the competent Court. He was also granted regular bail subsequently. The impugned order of detention has been passed on November 05, 1996, i.e. after a delay of 5 months and 15 days. It is of course true that the detaining authority relied on two incidents of 2nd October and 10th October, 1996, both unregistered cases. I have gone through the allegations. I fail to understand if the allegations are really of such a grievous nature, why the cases have not been registered against the petitioner. 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 v. S.Ramamurthy reported in 1993(2) Suppl. SCC 61." 6. So far as the aforesaid contentions are concerned, no affidavit-in-reply is filed by the authority controverting the said contention. In such type of cases, normally, reply is required to be filed, controverting the averments made in the petition; otherwise, it would be presumed that the averments made in the petition are correct because they stand uncontroverted. In view of the said aspect also, the averments made in this behalf are required to be accepted. Since the averments are not controverted and also on the ground of unexplained delay in passing the detention order, this petition is required to be allowed. 7. In view of what is stated above, this petition is allowed. The order of detention dated 19.2.2004 is quashed and set aside. The detenu, Firoz @ Rajak Abdul Majid Shaikh, is ordered to be set at liberty forthwith, if he is not required in connection with any other case. 8. At this stage, learned advocate for the petitioner has voluntarily made a statement that the petitioner will not enter into Surat City upto 31st October, 2004, unless he is required to appear in any other case for attending the court. Learned advocate for the petitioner has further submitted that he is making the statement after taking instructions from the detenu. The Concerned Police Officer may also monitor this aspect so that the statement of the petitioner can be effectively taken care of by the authorities. Rule is made absolute. ( P.B. Majmudar, J. ) syed/