IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10293 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BHAGWANDAS PARUMAL GODWANI Versus THE STATE OF GUAJRAT THRO' THE DY. SECRETARY -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 10293 of 2004 MR HR PRAJAPATI for Petitioner No. 1 MR MR PRAJAPATI for Petitioner No. 1 MRS HB PUNANI, AGP for Respondent No.3 RULE SERVED for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 13/01/2005 ORAL JUDGEMENT 1. By way of filing this Special Civil Application, the petitioner has challenged the order passed by the District Magistrate, Vadodara on 07.04.2004 in exercise of powers conferred upon him under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 ["PASA Act" for short], directing the detention of the petitioner as bootlegger within the meaning of PASA Act and the petitioner came to be detained in pursuance of the said order from 10.07.2004. 2. The grounds of detention as served upon the petitioner and placed on record, depicts that the detaining authority took into consideration the facts of the registration of offence against the petitioner under the Bombay Prohibition Act and two incamera statements of the witnesses. A crime on 04.01.2004 came to be registered against the petitioner before Karjan Police Station under Sections 66(1)B, 65AE, 81 and 83 of the Bombay Prohibition Act. The detaining authority carefully examined the investigating papers in the said case, where some quantity of foreign liquor was found in possession of the petitioner. The detaining authority also took into consideration two incamera statements recorded by the sponsoring authority on 13.01.2004 and 14.01.2004 and verified by the detaining authority on 01.03.2004. The first witness stated the incident occurred on 31.12.2003 wherein while at 9.00 a.m., the witness was going to his home from National Highway No.8, Near Bamangam, the petitioner got down from a car and identified himself to be Bhagwandas Parumal Godwani, big bootlegger of Vadodara city, to the witness and directed the witness to transport bulk of foreign liquor stored in the car of the petitioner and deliver the same to one Girishbhai Hirabhai Parmar resident of Kadod. The witness was directed to sit in the car, but he refused and on refusal, the petitioner excited and called two persons who were sitting in the car to come out and to beat the witness, so other two persons sitting in the car came out with hockey stick and started beating the witness. The traffic was halted for some time and they requested the petitioner and his associates not to beat the witness but the petitioner and his associates started running towards those vehicles and therefore, the vehicles were driven away. In the area terror was created and by act of this supplication, the witness could be saved. While, the other witness narrated the incident of 01.01.2004, when at 7.00 p.m. from National Highway, the witness was going to his house, a car was stopped near him and petitioner threatened the witness that the witness was informing the police about the illegal activity of the petitioner and on the information of witness, police was seizing foreign liquor from the petitioner. The petitioner ordered his associates sitting in the car to beat the witness and, therefore, four persons got down from the car with hockey stick and started beating the petitioner. By requesting and urging the petitioner, the witness could save himself. According to the detaining authority due to fear of the petitioner none of the witnesses reported this incident before the police and, therefore, claiming privilege under Section 9(2) of the PASA Act, the identity of the witnesses were concealed. From the above material, the detaining authority was subjectively satisfied that the petitioner was head strong person and was a bootlegger dealing in storing, transporting and selling illegal liquor. The petitioner was keeping deadly weapon with him and for his illegal activities of dealing in liquor after forming gang was beating and harassing innocent citizens and creating terror amongst the society, which was prejudicial to the maintenance of the public order. The detaining authority came to a conclusion that it was necessary forthwith to prevent illegal activity of the petitioner and hence, he passed an order of detention, which is under challenge. 3. Learned advocate Mr.H.R.Prajapati, for petitioner and learned AGP Mrs.H.B.Punani, for respondent No.3, were heard at length. 4. Out of various grounds urged for quashing the order under challenge, as controverted and opposed by learned AGP, it appears that the petition can be disposed of by discussing and examining the ground of allegation that whether the delay caused in passing the order vitiates the order of detention. 5. Needless to observe that deviating from general law of the statue in the form of PASA Act is brought to cure illegal and dangerous activity in the society forthwith, which could not be taken care of by redress under general law, because, ordinary law takes its own time. Therefore, the essence and very object of legislation like PASA Act is immediate and prompted action which is prime requirement of the said exceptional law, dealing with liberty of a citizen as enshrined in the Constitution of India. Thus, when under the PASA Act where prompt action is required and when laxity is shown to fulfil the very object of the PASA Act, inescapable inference would lead to conclusion that no action as envisaged under the PASA Act was required. In this premise of law, it is always held that the delay in passing the order is fatal to subjective satisfaction of the concerned authority. 6. Adverting to the facts of the present case undisputably the criminal offence against the petitioner came to be registered on 04.01.2004. The petitioner was released on bail on 08.04.2004. The sponsoring authority recorded incamera statements of the witnesses on 04.01.2004 and second on 13.01.2004 referring the unreported incidents on 01.01.2004 and 31.12.2003. Both the statements of witnesses as recorded by sponsoring authority came to be verified by the detaining authority on 01.03.2004 then also the order of detention came to be passed on 07.04.2004 even after more than one month of the verification of the statements of the witnesses. If the chain of circumstances is examined as a whole a procedure started on 04.01.2004 when crime came to be registered was ended on 07.04.2004, and detention order came to be passed causing delay of about four months. This delay is to be construed with reference to dire necessity shown by the detaining authority in ground of detention to prevent the illegal activity of the petitioner forthwith, as aforesaid. That is the very purpose and object of PASA Act. If the promptness and alacrity is not shown in taking action under detention law, inference would lead to a conclusion that there was in fact no such dire necessity to detain the petitioner in exceptional law to prevent his illegal activity. Thus, the delay in passing the order of detention becomes fatal and order of detention is vitiated on this ground alone. In this view of the matter, the order of detention challenged in this petition is required to be quashed and set aside. 7. In the result, in the view of the above discussion, this Special Civil Application is allowed. The order passed by the District Magistrate, Vadodara on 07.04.2004 in exercise of powers under Section 3(1) of the PASA Act against the petitioner is hereby quashed and set aside. The petitioner Bhagwandas Parumal Godwani is directed to be set at liberty forthwith, if he is not required to be detained in Jail for only purpose. Rule is made absolute. [J. R. VORA,J.] (vijay)