IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8372 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 -------------------------------------------------------------- GURUCHARAN SING @ BABLI BHAGSING SIKH Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: MS DR KACHHAVAH for Petitioner MR UR BHATT, AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 17/10/2000 ORAL JUDGEMENT The petitioner detenu has, by filing this writ petition under Art.226 of the Constitution of India, challenged the legality and validity of order of detention dt. 26-6-2000 Annexure : A passed by Respondent No.1 which he has passed in exercise of powers conferred upon him under Sec.3(2) of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short "the Act"). 2. As per the papers of grounds of detention, it is the case of the detaining authority that petitioner detenu is a "dangerous person " within the meaning of Sec.2(c) of the Act and that his activities are prejudicial to the maintenance of public order. Before passing an order of detention, for arriving at his subjective satisfaction, the detaining authority has placed reliance on one case lodged under the Indian Arms Act in D.C.B. Police Station, Ahmedabad against the detenu, and that case has been referred to by the detaining authority in the grounds of detention Annexure : B. The detaining authority has also placed reliance on statements of two anonymous witnesses whose identity has not been disclosed by claiming privilege under Sec.9(2) of the Act. As per the papers, the detaining authority has verified the statements of said two witnesses on 25-6-2000 and on the very next day i.e. on 26-6-2000, he passed an order of detention which is challenged in this writ petition. 3. Though Rule has been served upon each respondent,the respondents have not filed affidavit-in-reply in reply to the Writ Petition controverting the grounds mentioned in it. 4. Ms. Kachhavah, the learned advocate for the petitioner has argued that the detaining authority has placed reliance on statements of unnamed two witnesses whose identity has not been disclosed by claiming privilege under Sec.9(2) of the Act but looking to the respective dates of statements, date of verification of said statements and date of passing order of detention, said claim of privilege is not genuine, and therefore, it violates mandate given in Art.22(5) of the Constitution of India. 5. Ms. Kachhavah has placed reliance on case of KALIDAS CHANDUBHAI KAHAR Vs. STATE OF GUJARAT & OTHERS, reported in 1993(2) G.L.R. 1659, wherein it has been held that the detaining authority is expected to do some exercise before actually exercising the privilege under Sec.9(2) of the Act. He is required to do such exercise to verify the correctness and genuineness of the facts stated in said statements. He had also to verify as to whether persons are fictitious or real one. When he verified the statements on 25-6-2000 and passed an order of detention on the very next day i.e. on 26-6-2000, it can be said that he had no time to do such exercise, and therefore, the privilege claimed by him is not genuine. Looking to the facts and circumstances of the present case, this present case falls within the four corners of the case cited by Ms. Kachhavah. 6. In view of what is stated hereinabove, this writ petition is allowed. The order of detention dt. 26-6-2000 passed by Respondent no.1 which is at Annexure:A is quashed and set aside. The petitioner detenu is ordered to be released forth with, if he is not required to be detained further for any criminal case or proceedings. Rule is made absolute accordingly. Direct Service is permitted. Date: 17/10/2000. (H.H.MEHTA,J.) ccshah