IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1218 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 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 -------------------------------------------------------------- SURENDRASINH @ SURUBHA DILUBHAZALA Versus SUDHIR SINHA -------------------------------------------------------------- Appearance: MR MIG MANSURI for Petitioner MR KT DAVE, AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE Date of decision: 18/04/2000 ORAL JUDGEMENT #. Commissioner of Police, Rajkot City, Rajkot, passed an order on August 10, 1999, in exercise of powers under section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA Act" for short), detaining Surendransinh @ Surubha Dilubha Zala, under the provisions of the PASA Act, for a period of one year. #. The detaining authority took into consideration two offences registered against the detenue and after considering the possibility of resorting to less drastic remedies, came to a conclusion that since the petitioner is required to be immediately prevented from pursuing his illegal and anti-social activities, the detention under the PASA Act is the only efficacious remedy that can be resorted to. #. The petitioner - detenue challenges the order of detention on various grounds. However, Mr. Mansuri, learned advocate appearing for the petitioner has mainly relied on the defect in the order of fixing the period of detention at the very initial stage. Mr. Mansuri submitted that the order of detention is subject to approval by the government and therefore, the period of detention could not have been fixed to one year by the detaining authority while passing the order. The order, therefore, is rendered bad in law and the same may be quashed. #. Mr. K.T. Dave, learned AGP has opposed this petition. #. Having regard to the contentions raised by the petitioner, assailing the order of detention, if the order of detention is perused, in the last para, it is categorically stated that the detaining authority detained the detenue for a period of one year in exercise of powers under Section 3 (1) of the PASA Act. The question therefore is whether the detention for specific period of one year by the detaining authority can be supported in law? #. If the scheme of the PASA Act is seen, the order passed by the detaining authority is required tobe approved by the State Government within 12 days, by virtue of provisions of Section 3(3) of the PASA Act. Section 11 provides that in every case, where a detention order has been made under the PASA Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 10, the grounds for detention along with representation if any along with report of detaining authority if order is made by an authorised officer. Under Section 12, Advisory Board has to submit its report within 7 weeks of the date of detention of the detenue to the State Government, along with its opinion whether or not there is sufficient cause for detention. It is therefore clear from the scheme of the Act that the order passed by the detaining authority at the initial stage is not final. The order may be confirmed by the government or may not be confirmed by the government and the detaining authority therefore, cannot at the initial stage fix the period of detention as has been done by the detaining authority in the instant case. The Apex Court in the case of Makhan Singh Tarsikka v. State of Punjab, AIR 1952 SC 27, has observed as under. "4. Whatever might be the position under the Act before its amendment in February 1951, it is clear that the Act as amended requires that very case of detention should be placed before an Advisory Board constituted under the Act (S.9) and provides that if the Board reports that there is sufficient cause for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (S.11). It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported." This decision would be squarely applicable to the facts of the present case and therefore, the order in question cannot be supported. #. Division Bench of this High Court in the case of Pravin Mahipatra Mehta & anr. v. District Magistrate, Surendranagar & others, reported in 1993 (1) GCD 671(Guj.) also considered this very question and followed the decision of Makhan Singh Tarsikka (supra). Division Bench of this Court also considered the decision in the case of Mrs. T.Devki & others v. Govt. of Tamil Nadu, reported in AIR 1990 SC 1086 and the decision of Division Bench of the Bombay High Court, in the case of Rajendra Mansukhlal Shah v. Commissioner of Police, Greater Bombay & others, reported in 1989 Criminal Law Journal, 1741 and came to conclusion that where the detaining authority fixed the period of detention in the initial order of detention, the detaining authority usurped the power of the government and the Advisory Board as per the scheme mentioned in the provisions of the PASA Act Therefore, the detention order was contrary to the Article 22(4) of the Constitution of India and ultimately, the order of detention was quashed. #. In view of the above legal position as settled by various pronouncements of the Apex Court by a Bench of five Judges and Division Bench of this Court, the impugned order deserves to be quashed and set aside. #. The present petition is allowed. The impugned order of detention passed on August 10, 1999 is hereby quashed and set aside. The detenue - Surendrasinh @ Surubha Dilubha Zala, is hereby ordered to be set at liberty forthwith, if not required in any other matter. Rule made absolute with no order as to costs. [A.L.DAVE, J.] ***** pirzada/-