IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6384 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 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 -------------------------------------------------------------- HANSABEN BHAGVANJIBHAI KOLI Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6384 of 2001 MR PRAVIN GONDALIYA for Petitioner No. 1 MRS HANSABEN PUNANI, AGP for Respondents No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 28/12/2001 ORAL JUDGEMENT The petitioner has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as `the Act of 1985') by the order dated 27-6-2001 passed by the Police Commissioner, Rajkot City, and she has been declared as bootlegger. 2. It is now well settled that unless the activities of a person as bootlegger has disturbed the maintenance of public order, he cannot be detained under the Act. Reliance is placed on a decision of the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491. 3. I have heard learned advocate for the petitioner and also perused the material on record. According to learned advocate for the petitioner, for passing the order of detention the detaining authority has relied upon three offences registered against the petitioner, two at `B' Division Police Station, Rajkot City being C.R.Nos.223/2000 dated 3-6-2000 and 266/2001 dated 17-6-2001 and one at Prohibition Police Station, Rajkot City being C.R.No.215/2001 dated 17-5-2001. It is submitted by him that what is stated in para 5 of the grounds of detention is not supplied to the petitioner and hence, the detenu could not make an effective representation against the order of detention which violated the fundamental rights guaranteed under Article 22(5) of the Constitution of India. It appears that no affidavit has been filed by the authorities justifying the grounds mentioned along with the order of detention. It has been held in a judgment delivered by this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat and Ors. reported in 2000(1) G.L.H. 393 as under: "Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever an order of detentiion is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority". 3. Since no affidavit has been filed either by the detaining authority or by the State authority justifying satisfactorily the action taken by the detaining authority in passing the order of detention, the order of detention is illegal and the same cannot be sustained. 4. The petition is allowed. The impugned order of detention dated 27-6-2001 passed against the detenu is hereby quashed and set aside. The detenu Hansaben Bhagvanjibhai Koli is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. (R.P.DHOLAKIA,J.) radhan/