IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12511 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE A.L.DAVE ============================================================ 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 -------------------------------------------------------------- PRAVINBHAI KANTIBHAI KOLI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 12511 of 2001 MS SUMAN PAHWA for Petitioner No. 1 MR DP JOSHI, AGP, for Respondents No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE Date of decision: 06/02/2002 ORAL JUDGEMENT 1. The petitioner-detenu came to be detained by virtue of an order passed by the District Magistrate, Valsad, dated the 13th November 2001, in exercise of powers under Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA Act" for short). The petitioner-detenu is labelled as a 'Bootlegger' as defined under the PASA Act and a satisfaction is recorded by the detaining authority in the grounds of detention that his activites are deterimental to public health and public order. For arriving at this subjective satisfaction, the detaining authority took into coinsideration one offences registered against the detenu under the Bombay Prohibition Act. After considering possibility of resorting to less drastic remedies, the detaining authority came to a conclusion that the petitioner is requied to be detained under the provisions of the PASA Act in order to immediately prevent him from pursuing his illegal and anti-social activities. 2. The petitioner has raised many contentions in the petition to assail the grounds of detention. Ms. Pahwa, learned advocate appearing for the petitioner, has raised only one contention. She submitted that the order of detention was approved by the Government on the 24th November, 2001. A representation was made on behalf of the detenu to the detaining authority and the detaining authority has rejected the said representation by communication dated the 12th December, 2001. Ms. Pahwa submitted that the detaining authority could not have rejected the representation. The authority was required to forward the same to the Government for its consideration as the detention was already approved by the Government on the 24th November, 2001 and the detaining authority had become functuous officio. In support of her argument, she has placed reliance on the decisions of this Court in the case of Urmilaben Navnitlal Gandhi v. Commissioner of Police, 1994(2) GLH (U.J.) 10 and Salim Pothiyu Rehmanbhai Belia v. District Magistrate and Ors, 1994(2) GLH (U.J) 11. 4. Learned Assistant Government Pleader, Mr. Bhatt, has opposed this petition. 6. In light of this factual background, if the legal position is considered, the detaining authority becomes functuous officio after the order of detention is approved by the Government and the representation, thereafter, cannot be decided by him. All that he is required to do is to forward the same to the Government for its consideration. In the instant case, the detaining authority has rejected the representation after having become functuous officio. This can be said to have infringed the right of the detenu of making an effective representation envisaged under Article 22(5) of the Constitution. The continued detention of the detenu, therefore, would stand vitiated. The petition deserves to be allowed on this ground and the same is, therefore, allowed. 7. In the result, the petition is allowed. The impugned order of detention dated the 13th November, 2001, passed against the detenu is hereby quashed and set aside. The detenu-Pravinbhai Kantibhai Koli Patel is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute with no orders as to costs. 8. Direct service is permitted. [ A.L. DAVE, J. ] gt