IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2836 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 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 -------------------------------------------------------------- HALUBHAI BANESINH ZALA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MS SUBHADRA G PATEL for Petitioner MR SJ DAVE, AGP for Respondent Nos.1, 2 & 3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 07/07/2000 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 15-3-2000 passed by the Police Commissioner, Rajkot 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 and also perused the material on record. Learned advocate for the petitioner has mainly argued that there is total non-application of mind on the part of the detaining authority as it was stated in the ground of detention that detenu was not granted bail and he is in jail as his bail application was rejected. According to her, detenu was released on bail by the learned Judicial Magistrate (First Class), Rajkot vide order dated 15-2-2000 and, therefore, order of detention is illegal and same be quashed and set aside. 4. There is substance in the argument advanced by the learned advocate for the petitioner as it appears from the grounds of detention that though the petitioner was released on bail, the detaining authority has stated that petitioner has not been granted bail and he is in jail. Therefore, there is non-application of mind on the part of detaining authority. Even no affidavit has been filed by the respondents controverting the same. It has been held in a judgment delivered by this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat and Ors. reported in 2000(1) G.L.H. 393 as under: "Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever an order of detention is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority". 5. Under the circumstances, the order of detention becomes illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points. 6. The petition is allowed. The impugned order of detention dated 15-3-2000 passed against the detenu is hereby quashed. The detenu-Halubhai Banesinh Zala is set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute with no order as to costs. (R.P.DHOLAKIA,J.) radhan/