IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1567 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 @ TARABEN MANGALBHAI CHUNIBHAI KAHAR Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1567 of 2001 MR SATISH R PATEL for Petitioner No. 1 Mr. HL Jani, AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 24/07/2001 ORAL JUDGEMENT Heard learned advocate Mr. Patel for the petitioner and the learned AGP Mr. Jani for the respondents. In this petition under Article 226 of the the Constitution of India, the petitioner has challenged the impugned order of detention dated 1.1.2001 passed by the detaining authority whereunder the petitioner has initially been ordered to be detained at the Sabarmati Jail, Ahmedabad as Class II detenu. According to the grounds of detention communicated to the petitioner, in all, three offences have been registered against the petitioner wherein last offence registered is dated 25th July, 2000 and the petitioner has been considered to be bootlegger u/s. 2(b) of the PASA Act. The statements of the secret witnesses were recorded by the concerned PI on 24.8.2000 and 26.8.2000 and were verified by the detaining authority on 2nd September, 2000. As per the grounds of detention, the petitioner has been involved in two unregistered offences as per the statements of the secret witnesses dated 20.8.2000 and 13.8.2000 and 15.8.2000. The respondents have filed affidavit in reply which is on record of the petition. 3. Learned advocate Mr. Patel appearing for the petitioner has raised various contentions challenging the impugned order of detention. However, according to him, one contention is enough to vitiate the impugned order of detention. He has submitted that looking to the facts on record, considering the date of the last registered offence and the involvement of the petitioner in last unregistered offence as per the statements of the secret witnesses and also considering the date of impugned order of detention which is dated 1.1.2001, there is delay of about more than four months in passing the impugned order of detention from the date on which the last offence has been registered against the detenu. There is also delay from the date of unregistered offence as per the statement of secret witness. Such delay has remained unexplained and, therefore, in view of such an unexplained delay in passing the impugned order of detention, the petition is required to be allowed by quashing and setting aside the impugned order of detention. He has placed reliance upon the decision of this court reported in 1997(1) GLH page 381, para 21. Learned AGP Mr. Jani has submitted that looking to the material on record and considering the facts of the case, there were compelling circumstances for passing the impugned order of detention and, therefore, according to him, the impugned order of detention is legal and valid and this court is not required to interfere with the same. Looking to the date of the last offence registered against the petitioner and also the involvement of the petitioner in unregistered offence and considering the date of the impugned order of detention, as per my view, there is delay of about four months in passing the impugned order of detention which has not been explained by the detaining authority. In case of Elesh N. Patel versus Commissioner of Police, Ahmedabad, this Court has held as under in para 21 of the report : "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 5, 1996 i.e. after a delay of five months and fifteen days. If 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 buttress my findings, I would say the reference may be made to the decision of the supreme court in Anand Prakash v. State of UP reported in AIR 1990 SC 516 and Pradeep Nilkanth v. S. Ramamurthy reported in 1993(2) Suppli. SCC 61." Therefore, in the facts of the present case and also in view of the aforesaid decision in case of Elesh N. Patel (supra), considering the unexplained delay of about three and half months in passing the impugned order of detention, the same is required to be quashed and set aside. In the result, this petition is allowed. Impugned order of detention dated 1.1.2001 passed by the detaining authority is quashed and set aside. The detenu Taraben Mangalbhai Chunibhai Kahar who has been detained in Sabarmati Jail Ahmedabad is ordered to be released forthwith if she is not required in any other case. Rule is made absolute accordingly with no order as to costs. DSP. 24.7.2001. (H.K.Rathod,J.) Vyas