IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11111 of 2000 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 Civil Judge? : NO -------------------------------------------------------------- CHANDRAKNAT @ CHARKHI SANKARRAO SADKAR Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: MR SATISH R PATEL for Petitioner Mr.Uday Bhatt AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA Date of decision: 12/12/2000 ORAL JUDGEMENT #. The petitioner herein by way of this Special Civil Application under Article 226 of the Constitution of India has challenged his order of detention passed by the Police Commissioner, Baroda City, Baroda dated 6.8.2000 in exercise of the powers conferred upon him under section 3(1) of the Gujarat Prevention of Anti social Activities Act 1985 (PASA Act for short) . The petitioner came to be detained from 6.8.200 in pursuance of the said order. #. The detaining authority placed reliance on the investigation of 4 crimes registered against the petitioner before the Baroda City Police Station under sections 66-B and 65-E of the Bombay Prohibition Act. The offences came to be registered on 31.8.1999, 18.12.1999, 23.4.2000 and 3.6.2000 respectively against the petitioner. The detaining authority also placed reliance on the statement of 3 witnesses who on assurance of anonymity stated before the concerned authority that the petitioner was indulging in selling of illegal liquor and was a hardened criminal and a head strong person. From the above material the detaining authority came to the conclusion that the petitioner was a bootlegger within the meaning of section 2(b) of the PASA Act and hence the impugned order. #. Learned advocate Mr. S.R.Patel for the petitioner and Mr. Uday Bhatt learned AGP for the respondents were heard. #. Amongst the other grounds it was vehemently urged that the detaining authority failed to consider less drastic remedy available to the detaining authority. It was urged that the remedy of cancellation of bail as provided under section 437(5) of the Cr.P.C. was available to the detaining authority. However the detaining authority has not resorted to it. It was urged that the order of detention therefore, is vitiated. #. In the matter of Zubedabibi Rasidkhan Pathan vs State of Gujarat reported in 1995(2) GLR 1134 the Division Bench of this court observed that powers granted to the court for cancelling the bail under section 437 (5) Cr.P.C. were far more wide in import and intent. This court quashed the order of detention because the detaining authority failed to consider less drastic remedy i.e. provisions of cancellation of bail. This view was also fortified by the bench decision of this court in LPA No. 1056 of 1999 in the matter of Yunusbhai Hasanbhai Ghachi vs. District Magistrate decided on 15.9.1999. #. On perusing the order of detention vide para 4 of this case, the detaining authority has concluded that though the petitioner was on bail in all the offences registered against him the proceedings for cancellation of bail was likely to consume more time and therefore was not resorted to. The detaining authority has made a hollow statement in this respect. Firstly, the detaining authority has brushed aside the less drastic remedy by merely saying that the same was likely to consume more time. Secondly it clearly appears that the last offence in point of time was registered against the petitioner on 3.6.2000 and the order came to be passed on 6.8.2000. The petitioner was on bail during this period and no attempts were made to resort to the provisions under section 437(5) of the Cr.P.C. by the authority. For both the above reasons, the order of detention is vitiated for non application of mind by the detaining authority as aforesaid and the order of detention therefore, is required to be set aside. #. In view of the above discussion the order of detention passed by the Police Commissioner, Baroda City, Baroda on 6.8.2000 against the petitioner under the PASA Act is ordered to be quashed and set aside. The petitioner Chandrakant @ Charkhi Sankarrao Sadkar is ordered to be released forthwith if he is not required to be detained for any other purpose. Rule is made absolute. Direct service permitted. (J.R.Vora.J) govindan.