IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8126 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- CHETAN DAS VARANDMAL SHEVANANI (SINDHI) Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MS SUBHADRA G PATEL for Petitioner MR UDAY BHATT, Ld AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 19/10/2000 ORAL JUDGEMENT The petitioner-detenu has, by filing this writ petition under Article 226 of the Constitution of India, challenged the legality and validity of an order of detention dated 01/07/2000 (Annexure-A) passed by respondent No.2 with respect to detenu - Chetandas Varandmal Shevanani (Sindhi) in exercise of his powers conferred upon him under section 3(2) of the Gujarat Prevention of Antisocial Activities Act, 1985 (in short "the Act"). 2. As per the papers of grounds of detention, the petitioner-detenu is "a bootlegger" within the meaning of section 2(b) of the Act and that activities of the petitioner are prejudicial to the maintenance of the public order. 3. Before passing an order of detention, for arriving at a subjective satisfaction, the detaining authority has placed reliance on one Prohibition Case lodged against the petitioner-detenu in Prohibition Station, Norther Region of Ahmedabad City on 29/06/2000 which is referred to in the grounds of detention (Annexure - B). The detainig authority has also placed reliance on statements of two anonymous witnesses whose identity has not been disclosed by claiming privilege under section 9(2) of the Act. As per the facts of this case statements of said two witnesses were verified on 30/06/2000 and on the next day i.e. on 01/07/2000, the detaining authority passed an order of detention against the detenu which is challenged in this writ petition. 4. Though rule has been served upon each respondent, none of the respondent has filed affidavit-in-reply, in reply to this writ petition. Thus, it is clear that the respondents have not controverted the grounds of attack for challenging an order of detention which is the subject matter of this writ petition. 5. Ms.Subhadraben Patel,learned advocate for the petitioner has argued that looking to respective dates of statements, date of verification and date of order of detention, it is crystal clear that the detaining authority has wrongly claimed the privilege under section 9(2) of the Act. As per the arguments of Ms.Subhadraben Patel, learned advocate for the petitioner the case was lodged against the detenu on 29/06/2000. The statements of two witnesses were recorded on 30/06/2000 and on the very next day i.e. on 01/07/2000, the detaining authority passed an order of detention. These respective dates show that the claim is not genuine. Ms.Subhadraben Patel, learned advocate for the petitioner has cited an authority of KALIDAS CHANDUBHAI KAHAR V/s. STATE OF GUJARAT AND OTHERS, reported in 1993 (2) GLR 1659, wherein it has been held that the detaining authority is expected to do some exercise before actually exercising the privilege under section 9(2) of the Act. Thus, when the privilege is not genuine mandate given in Article 22 of the Constitution of India is violated and, therefore, the order of detention which is challenged in this writ petition is bad in law and it requires to be set aside. 6. In view of what is stated hereinabove, this writ petition is allowed. The impugned order of detention dated 01/07/2000 passed by respondent no.2 with respect to detenu is quashed and set aside. The detenu is ordered to be released forthwith if he is not wanted in any custody for any criminal case or proceeding. Rule is made absolute. Direct service is permitted. ( H. H. Mehta,J.) (vrp)*