IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 951 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 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 -------------------------------------------------------------- CHAUHAN TULSHIBHAI MOHANBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MS KRISHNA U MISHRA for Petitioner Mr. HL Jani, AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 13/06/2001 ORAL JUDGEMENT Heard learned advocate Ms. Mishra for the petitioner and learned AGP Mr. Jani for the respondent State. In this petition, the petitioner has challenged the impugned order of detention dated 25.10.2000. Said order of detention has been passed by the detaining authority under section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 ("the PASA Act" for short) and the grounds of detention were communicated to the petitioner under section 9(1) of the PASA Act. The last offence has been registered against the petitioner on 6th August, 2000 and date of unregistered offences are 3rd July, 2000, 16th July, 2000 23rd July, 2000 and 1st August, 2000. The statement of the secret witnesses were recorded on 21st August, 2000 by the concerned police authority and were verified by the Dy. S.P. on 22nd August, 2000 and, thereafter, after the delay of about two months, the detaining authority verified the said statements on 23rd October, 2000 and thereafter on 25th October, 2000, impugned order of detention has been passed by the detaining authority. In all, four statements of the secret witnesses have been recorded whose identity has been withheld by claiming privilege under section 9(2) of the PASA Act. The petitioner was enlarged on bail in respect of all the offences registered against him. The respondent State has filed the reply to the petition which is on the record of this petition. Learned advocate Ms. Mishra appearing for the petitioner has raised the contention that the delay in passing the impugned order of detention has not been explained by the detaining authority. According to her, the last offence is dated 6th August, 2000 and considering the unregistered offences wherein last offence is dated 1st August, 2000. In view of these facts, there is delay in passing the order of detention against the petitioner and this unexplained delay has vitiated the subjective satisfaction. She has placed reliance upon the decision of this court reported in 1997 (1) GLH page 381. Learned AGP Mr. Jani, while supporting the impugned order of detention, has submitted that looking to the grounds of detention and the statements of the secret witnesses, the petitioner has been considered to be dangerous person and, therefore, the detaining authority was having no option but to detain the petitioner under the PASA Act. He has, therefore, submitted that the detaining authority was justified in detaining the petitioner and, therefore, this court should not interfere with the same. I have considered the submissions made by both the learned advocates. I have considered the undisputed facts on record and also considered the relevant observations made by this Court in the decision reported in 1997 (1) GLH 381. In para 21 of the said decision, this court has observed as under: "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 five months and 15 days. It is of course true that the detaining authority has 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 bultress 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. Ramamurthy reported in 1993 (2) Suppli. SCC 61." I have considered the observations made in the aforesaid decision. Considering the facts of the present case, the last offence has been registered against the petitioner on 6.8.2000 and during the interregnum period, from the date of the last offence registered against the petitioner till the date of the order of detention namely till 25.10.2000, no offence has been registered against the petitioner and, therefore, there was a gap of two and half months which has been remained unexplained and unanswered by the detaining authority, offence registered against the petitioner till the date of the order of detention namely till 25.10.2000. Now, if the unregistered offences are considered, as per the statement of the secret witness No. 4 given on 21.8.2000, the date of unregistered offence appears to be that of 1.8.2000 and from that date also,if considered, till the date of the impugned order of detention, nothing has been alleged against the petitioner detenu during the interregnum period. The delay has not been explained. Therefore, following the ratio laid down by this Court in case of Elesh N. Patel (supra), keeping in view the observations made in para 21 of the report, in the facts and circumstances of the case, the impugned order of detention is required to be quashed and set aside. For the reasons recorded hereinabove, the petition succeeds and the same is allowed. The order of detention dated 25.10.2000 is vitiated and resulted to quash and set aside. The detenu Chauhan Tulsibhai Mohanbhai who has been detained at the Special Jail, Porbandar be set at liberty forthwith if he is not required in any other case. Rule is made absolute accordingly. No order as to costs. Direct Service is Permitted. 13.6.2001. (H.K. Rathod,J.) Vyas