IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11588 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 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? -------------------------------------------------------------- MUKESH RAMJIBHAI SHARMA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 11588 of 2003 MS QURESHI FOR MR MM TIRMIZI for Petitioner No. 1 MR RM CHAUHAN Ld. AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 15/10/2003 ORAL JUDGEMENT By way of this special civil application, the petitioner has challenged the order of detention passed against him by the Police Commissioner, Ahmedabad city on 16.6.2003 under the exercise of powers under sec. 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the PASA Act" for short). The petitioner was declared as 'bootlegger'. The grounds served upon the petitioner and placed on record reveal that the detaining authority took into consideration two types of materials in passing the order. Firstly, registration of crimes against the petitioner on 13.6.2003 under sec.66(B), 65(A)(E), 81, 83 and 116(B) of the Bombay Prohibition Act. In addition to this, the detaining authority also relied upon two in-camera statements as recorded by the sponsoring authority on 13.6.2003 and verified by the detaining authority on 14.6.2003 revealing unreported incidents occurred on 10.5.2003 and 17.5.2003. From the above material, the detaining authority passed the order of detention against the petitioner which is impugned in this petition. Ld. advocate Ms. Qureshi for Mr MM Tirmizi for the petitioner and ld. AGP Mr. Chauhan for the respondents were heard at length. The affidavit in reply filed by the detaining authority as placed on record, is also taken into consideration. Out of various grounds raised on behalf of the petitioner and controverted by ld. AGP, from the rival contentions, it appears that this matter can be considered and decided on sole ground whether there is non-application of mind by the detaining authority as to the vital aspect of the matter in passing the order of detention. In this respect, undisputedly, the grounds served upon the petitioner revealing that the petitioner was in judicial custody in the crime registered against him when order came to be passed against him and served upon the petitioner. In this respect, the detaining authority came to the conclusion that the petitioner was likely to move an application for bail and was likely to be released on bail by the court competent and was likely to continue his illegal activity. Now the question is whether there was any material before the detaining authority while passing the order. If there was no material, the order becomes bad in law for non-application of mind to the vital aspects of the matter. While going through the record, it is found that there was no material before the detaining authority to reach to subjective satisfaction that the petitioner was likely to be released on bail. The facts of this case are squarely covered by a decision of the Apex court in the matter of Amrutlal and others vs. Union Government, through Secretary, Ministry of Finance and others, as reported in AIR 2000 SC 3675. Consequently, the order impugned becomes bad in law because there was no material before the detaining authority to reach to the subjective satisfaction that the petitioner was likely to be released on bail. The order impugned, therefore, required tobe quashed and set aside on this ground alone. In the result, this special civil application is allowed. The order impugned in this special civil application passed on 16.6.2003 by the Police Commissioner, Ahmedabad city under the PASA Act against the petitioner is quashed and set aside. The petitioner is directed to be set at liberty forthwith, if he is not required to be detained in jail for any other purpose. Rule made absolute with no order as to costs. DS Permitted. (J.R. VORA, J.) mandora/