IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10424 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 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? -------------------------------------------------------------- GURMITSINGH @ MIT BALDEVSINGH MATU (SARDAR) Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10424 of 2004 MR CHETAN B RAVAL for Petitioner No. 1 MS HB PUNANI, AGP for Respondent No. 1-3 RULE SERVED for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 20/12/2004 ORAL JUDGEMENT 1. Heard ld. counsel Mr. CB Raval for the petitioner detenu and ld. AGP Ms. HB Punani for the respondent State. Affidavit-in-reply of Commissioner of Police, Ahmedabad City, tendered today by ld. AGP Ms. Punani is taken on record. 2. By this petition under Article 226 read with Articles 21 & 22(5) of the Constitution of India, the petitioner detenu has challenged the legality and validity of the order of detention dated 16.06.2004 passed by the Commissioner of Police, Ahmedabad City, in exercise of the powers conferred on him by Section 3(2) of The Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the PASA Act) against the petitioner-detenu. The petitioner detenu has been branded as "boot-legger" as defined under Sec.2(b) of the PASA Act. 3. The grounds for detention supplied to the detenu petitioner indicate for recording subjective satisfaction and passing the order of preventive detention, in reference to the Scheme of Sec.3 R/w 9(1) of the PASA Act, the detaining authority -Police Commissioner, Ahmedabad City has taken into account the fact of registration of three different criminal offences punishable under The Bombay Prohibition Act. On all the three occasions, the petitioner detenu was involved in the illegal activities with connection with country-made liquor between 16.02.2004 and 06.06.2004 i.e. within a span of about 4 months. No formal statements of witnesses claiming privilege is recorded in the present case, but in view of the frequency of the offence, practically in the same area, the order of detention is passed. 4. The order of detention is challenged on various grounds mentioned in the petition. However, ld. counsel Mr. Raval appearing for the detenu has challenged the legality and validity of the order mainly on two grounds. The first ground pressed into service is that the order of detention under challenge is passed in hot haste and there was no need to pass such order because at the relevant date of passing of the order of detention, the petitioner detenu was in judicial custody. The sponsoring authority ought not to have placed even papers for obtaining the order of preventive detention. The grounds for passing preventive detention order conveyed to the detenu clearly reveal the fact of the petitioner detenu in judicial custody was very well there before the detaining authority and the same is reflected in the grounds. So, it is rightly argued by ld. counsel appearing for the petitioner that since the detenu was in judicial custody, the order of detention was not warranted. It is clear that in connection with third offence i.e. CR no.5181/2004 registered with Naranpura Police Station registered on 06.06.2004, the detenu came tobe arrested on 16.06.2004 and simultaneously he was also arrested for two offences registered earlier by the same police station. Order of detention is passed on 16.06.2004. So, there was no scope for the sponsoring authority to place all relevant papers concerned with the crime on the date on which the petitioner detenu was arrested. It is true that it is not impossible to place such papers when the detenu was in judicial custody, even then, an element of the passing of the order mechanically and in hot haste is clearly established. This Court has turned down such orders in more than one cases and in support of submission, ld. counsel Mr. Mr.Raval has placed reliance on the decision in the case of Amritlal & Ors. v/s Union Govt. through the Secretary, Ministry of Finance & Ors, reported in AIR 2000 SC 3675. I have gone through the cited decision and in my view, the ratio propounded in the cited decision would squarely apply to the facts of the present case and on this ground also, the impugned order of detention requires to be quashed and set aside. 5. In number of cases, this Court has consistently placed reliance on the ratio of the decision in the case of Amrutlal & Others v/s Union of India, Through Secretary, Ministry of Finance & Ors., AIR 2000 SC 3675 and has quashed the order of detention where detenu on the date of passing and/or execution of detention order, was either in judicial or in police custody. The reason that there is "likelihood to be released on bail", is different from "likelihood of his moving application for bail". In the cited decision, detenu was in custody. In these facts and circumstances, ratio of the decision in the case of Vinod Singh V/s District Magistrate, Dhanbad, AIR 1986 SC 2090 also would help the present petitioner-detenu. So, on this sole ground, impugned order of detention requires to be quashed. 6. For the reasons aforesaid, this petition is allowed. Impugned order of detention dated 16.06.2004, passed by the Police Commissioner, Ahmedabad City, is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute. Direct Service is permitted. [ C. K.BUCH, J] *rawal