IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6160 of 2004 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NARESHKUMAR MANSUKHLAL RANA Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6160 of 2004 MR ANIL S DAVE for Petitioner No. 1 MR KAMEN N SHUKLA for Petitioner No. 1 MR RC KODEKAR, AGP for Respondent No. 1-3 RULE SERVED for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA Date of decision: 29/09/2004 ORAL JUDGEMENT The detenu 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 15-4-2004 passed by the Police Commissioner, Surat City, he 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. It is submitted by the learned counsel for the petitioner that the order of detention was passed by the Police Commissioner on 15-4-2004 on the basis of solitary offence registered against the detenu with North Prohi. Police Station, Surat as Prohi.C.R.No.481 of 2004 on 25-2-2004 and also on the basis of statements of two independent witnesses recorded by the authority on 17th and 18th March, 2004 respectively and same were verified by the detaining authority on 13th April, 2004 and the petitioner was actually detained on 15-4-2004. The argument was concentrated mainly on the point of delay in deciding the representation and communicating the decision to the detenu. It is submitted that the petitioner has sent a written representation through advocate to the State authority on 29-4-2004. However, said representation was decided on 5-5-2004 and communicated on 11-5-2004. In this connection, learned counsel for the petitioner has relied upon the case of Harish Pahwa Vs. State of U.P. and others, AIR 1981 S.C. 1126, more particularly para 3 which runs as under: "The representation made by a detenu has to be considered without any delay. The Supreme Court does not look at equanimity upon delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital importance. It is the duty of the State to proceed to determine representations with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. Where this is not done the detention has to be declared unconstitutional." 4. In the present case, the representation dated 29-4-2004 has been rejected on 5-5-2004 and communicated to the detenu on 11-5-2004. Hence, there is a delay in deciding the representation and communicating the decision to the detenu. No satisfactory explanation has been putforward by the authorities though filed affidavit in not deciding the representation expeditiously and hence, the order of detention is illegal and the same cannot be sustained. In view of the above, the petitioner succeeds. Since the petitioner succeeds only on this ground, learned counsel for the petitioner did not press other points. 5. The petition is allowed. The impugned order of detention dated 15-4-2004 passed against the detenu Nareshkumar Mansukhlal Rana is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted. (R.P.DHOLAKIA,J.) radhan/