IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6802 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE A.K.TRIVEDI ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- MOHANLAL KISHANLAL SINDHI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MS SUBHADRA G PATEL for Petitioner MR AJ DESAI AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE A.K.TRIVEDI Date of decision: 18/01/2000 ORAL JUDGEMENT #. Heard Ms.Subhadra Patel, learned advocate for the petitioner and Mr.A.J.Desai, learned AGP appearing for respondents No. 1, 2 & 3. #. The detention order dated 17-4-1999 passed by respondent No.2 - The District Magistrate, Banaskantha against the petitioner in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act 1985 (`PASA' for short') is challenged by way of this present petition under Article 226 of the Constitution of India. #. That the grounds of detention served and supplied to the detenu under Section 9(1) of the PASA, a copy of which is produced at Annexure-B interalia indicates that 3 criminal cases were registered against the petitioner at Palanpur Nashabandhi police station in between 26-6-1997 to 5-4-1999. Furthermore, four witnesses have given statement, two of them have given their statements on 11-4-1999 whereas, the rest of two witnesses have given their statement on 12-4-1999 in respect to bootlegging activity of the petitioner / detenu. #. That on the consideration of the above stated material, the respondent No.2 - the detaining authority has come to the conclusion that the petitioner / detenu is bootlegger within the meaning of Section 2(b) of PASA. That enforcement of general provisions of law being insufficient to prevent the petitioner from continuing his prejudicial activities, detention order is necessary and hence the impugned order is passed. #. It has been submitted on behalf of the petitioner at bar that in all 3 cases registered against him, the petitioner has been released on bail. However, before passing the impugned order, the detaining authority has failed to consider the less drastic remedy like claiming cancellation of bail under Section 437(5) of CrPC. #. That in the matter of ZUBEDABIBI RASIDKHAN PATHAN VS. STATE OF GUJARAT AND OTHERS 1995 (2) GLR 1134, the Division Bench of this Court has expressed the view that non consideration of less drastic remedy available under Section 437(5) of the CrPC claiming cancellation of bail amounts to non application of mind which vitiates the subjective satisfaction, thus rendering the detention order bad in law. That the said view has been approved and endorsed in the proceeding of Letters Patent Appeal No : 1056 of 1999 decided on 15-9-99 by this Court (Coram : C.K.Thakker & A.L.Dave, JJ.). #. In the instant case, on scrutiny of papers, it appears that the grounds of detention is devoid of any averments in respect to cancellation of bail where claimed or not. It is also devoid of any fact from which a reasonable inference can be drawn that the detaining authority has every applied his mind to such less drastic remedy. Under the circumstances, the order is required to be quashed and set aside. #. As the petition succeeds on the aforesaid ground alone, it is not necessary to consider and decide the other contentions raised in the petition. #. On the basis of the aforesaid discussion, the petition is allowed. The detention order dated 17-4-1999 passed by respondent No. 2 - The District Magistrate, Banaskantha at Palanpur against the petitioner is hereby quashed and set aside. The petitioner - Mohanlal Kishanlal Sindhi is ordered to be set at liberty forthwith, if not required in any other case. Rule to that extent is made absolute. Date : 18-1-2000 [A.K.Trivedi, J.] #kailash#