SCA/15126/2005 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15126 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S.DAVE ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= MOHMADMAHETABALAM MOHMADASIM SAIYED- THR' HIS WIFE - Petitioner(s) Versus COMMISSIONER OF POLICE AHMEDABAD CITY & ORS. ================================================= Appearance : SCA/15126/2005 2/7 JUDGMENT MR AM PAREKH for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 3, ================================================= CORAM : HONOURABLE MR.JUSTICE ANANT S.DAVE Date : 19/09/2005 ORAL JUDGMENT 1. By filing this petition, the petitioner detenue has challenged the order of detention dated 02.05.2005 passed by the Police Commissioner of Ahmedabad City in exercise of powers conferred upon him under Subsection (1) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short, 'the PASA Act'), as, the “immoral traffic offender” as defined under Section 2(g) of the “Act” and is required to be detained under the preventive detention, so that, he may not continue with such type of illegal activities. SCA/15126/2005 3/7 JUDGMENT 2. Alongwith the detention order, the detenue was also served with the grounds of detention of the same date. In the said grounds, there is a reference to one solitary criminal case which is filed under the Immoral Traffic (Prevention) Act. In the grounds of detention, the statements of certain witnesses have been recorded. 3. The challenge, to the order of detention is on the ground that when the order of detention dated 02.05.2005 was served upon the petitioner, he was in judicial custody in connection with the offence registered against him under Immoral Traffic (Prevention) Act and there was no likelihood of continuing in the activities or dangerous activities as defined under the Act and to this extent there was no material before the detaining authority in support of the bail application or in support SCA/15126/2005 4/7 JUDGMENT of the likelihood of petitioner being released on bail, which may result into continuation of the detenue being indulged in such activities in future, and, therefore, the order of detention is vitiated and required to be quashed and set aside. 4. Shri A.M.Parekh, learned advocate appearing on behalf of the detenue has also relied upon three orders dated 16.08.2005 passed in Special Civil Application Nos. 11048/2005, 11448/2005 and 12151/2005 passed in the matter of co- detenue and they were ordered to be released on the similar ground raised by the learned advocates of those detenues. Therefore, according to him, the present petition also requires to be allowed and the detenue is also required to be set at liberty. 5. On the other hand, Mrs. Hansa B. Punani, learned Assistant Government Pleader has tried SCA/15126/2005 5/7 JUDGMENT to support the impugned detention order passed against the detenue. Affidavit in reply filed by respondent no.2, is taken on record. 6. The impugned order came to be challenged by the detenue on various grounds. It is not in dispute that the detenue was in judicial custody when the order of detention dated 02.05.2005 came to be passed by the detaining authority. Therefore, when the detenue was in judicial custody, there was no likelihood of continuing antisocial dangerous activities so as to disturb the public order by the detenue. It is pertinent to note that likelihood of filing of bail application by the petitioner and likelihood of releasing the detenue on bail, both are entirely different and separate propositions. It is required to be noted that there must be some credible material before the detaining authority to reach to the subjective satisfaction either about likelihood of filing SCA/15126/2005 6/7 JUDGMENT of bail application and/or likelihood of petitioner being released on bail. The facts of the present case are squarely covered by the decision of the Apex Court in the case of Amrutlal Vs. Union of India, reported in AIR 2000 SC 3675 wherein the Apex Court observed that there must be cogent materials before the officer passing the detention order that the detenue was likely to be released on bail. Admittedly, the detenue was in judicial custody and there was no material before the detaining authority to reach to the subjective satisfaction that the detenue was likely to file the bail application and was likely to be released on bail and in absence thereof, the subjective satisfaction of the detaining authority is vitiated, and, therefore, the impugned detention order is required to be quashed and set aside. 7. For the reasons recorded hereinabove, the SCA/15126/2005 7/7 JUDGMENT petition is allowed. The order of detention dated 02.05.2005 is quashed and set aside. The detenue Mohmadmahetabalam Mohmadasim Saiyed is ordered to be set at liberty forthwith if he is not required in connection with any other offence by any other authority. 8. Rule is made absolute accordingly. Direct Service is permitted. (ANANT S. DAVE, J.) amit