IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2126 of 2002 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 @ SHARIF BHUABHAI SHAIKH Versus COMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2126 of 2002 MR ANIL S DAVE for Petitioner No. 1 MR KAMEN N SHUKLA for Petitioner No. 1 MR SJ DAVE, AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 02/05/2002 ORAL JUDGEMENT By means of filing this petition, the petitioner has challenged the order of detention dated 23-1-2002 passed by the Police Commissioner, Ahmedabad City and he has been branded as "Cruel Person" within the meaning of Section 2(bbb) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short `the Act of 1985'), 3. Heard learned advocate for the petitioner and the learned AGP for the State. Also perused the record. Learned advocate for the petitioner has submitted that a solitary offence being Shahpur Police Station II C.R.No.3233/2001 dated 6-12-2001 has been registered against the detenu. Drawing my attention towards page 19 of the compilation, which is the grounds of detention, he has contended that detenu was in judicial custody at the time of passing the detention order which aspect ought to have been considered by the authority while passing the detention order. In this connection, he has relied upon the case of Amritlal and Other Vs. Union Govt. Through Secy., Ministry of Finance and Others, AIR 2000 S.C. 3675 wherein it was held at Head note as under: "Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (46 of 1988), S.3--Satisfaction of detaining authority--"Likelihood of detenu moving an application for bail"--not sufficient--It is different from "Likelihood to be released on bail"". 4. It seems that there is non-application of mind on the part of detaining authority in passing the detention order as the detenu was in judicial custody when the order of detention was passed which aspect has not been considered by the authority and hence, in view of the judgment rendered in Amritlal (supra), the continued detention of the detenu is illegal and the same cannot be sustained. 5. The petition is allowed. The impugned order of detention dated 23-1-2002 passed against the detenu is hereby quashed and set aside. The detenu Sharif Bhurabhai Shaikh is ordered to be set at liberty forthwith, if not required in any other case. Learned advocate for the petitioner assures before the bar that detenu will stay away from Ahmedabad for a priod of 15 days from the date of release. Rule is made absolute accordingly with no order as to costs. Direct service is permitted. (R.P.DHOLAKIA,J.) radhan/