=)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2921 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgment? 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? -------------------------------------------------------------- GULAM FARID @ FARID @ PAGI SULTHANBHAI SHAIKH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR AR SHAIKH for the Petitioner. Ms.Archana Raval, Assistant GOVERNMENT PLEADER, for the Respondents. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE P.B.MAJMUDAR Date of decision: 27/07/2004 ORAL JUDGEMENT By filing this petition, the petitioner-detenu has challenged his detention order dated 27.1.2004. By the impugned order, the petitioner is detained as a 'dangerous person' under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985 ("PASA", for short). Along with the order of detention, the petitioner is also served with the grounds of detention. In the grounds of detention, there is a reference about three pending criminal cases against the petitioner. All these cases are filed under Section 379 of the Indian Penal Code and the said cases are in connection with theft of various types of motor cars. After considering the said cases as well as considering the statements of some witnesses, whose names have not been disclosed to the petitioner, the detention order is passed. The said order of detention is impugned in this petition. The learned Advocate for the petitioner submitted that at the time when the detention order was passed, the petitioner was already in judicial custody; yet, the detaining authority mechanically stated that on submitting an application for bail, the petitioner will be released on bail. There is nothing to suggest that even any bail application is pending. The learned Advocate for the petitioner, in this connection, relied upon the decision of the Apex Court in Amritlal & Others v. Union Government and others, AIR 2000 SC 3675, wherein the Apex Court has observed as under :- " ... ... ... 4. In Augustin's decision (1994 Supp (1) SCC 597) (supra) this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : (AIR 1986 SC 2090 : 1986 Cri LJ 1959) wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the concerned officer in the matter under reference ought to be noticed and the same reads as below:- xxx xxx xxx 6. The requirement as noticed above in Binod Singh's case (AIR 1986 SC 2090 : 1986 Cri LJ 1959) (supra) that there is 'likelihood of the petitioners being released on bail' that however is not available in the reasonings as provided by the concerned officer. The reasoning available is the 'likelihood of his moving an application for bail' which is different from 'likelihood to be released on bail.' This reasoning, in our view, is not sufficient compliance with the requirements as laid down. 7. The emphasis however, in Binod Singh's case (supra) that before passing the detention order the concerned authority must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order. ... ... ...." It is not in dispute that the petitioner is already in judicial custody and there is nothing to suggest that even any bail application was filed by the detenu. Even considering the nature of such serious cases, in which the petitioner is prima facie involved, it cannot be said that he will be released on bail. However, this aspect is required to be considered by the concerned Magistrate at the time of deciding the bail application of the petitioner. The Public Prosecutor can even point out to the concerned Magistrate if there is serious material available to the Prosecution in connection with those theft cases. It is not possible, therefore, to believe that the authority has objectively come to the conclusion that the petitioner will be released on bail even when there is no bail application pending at the instance of the petitioner. Considering the said aspect and considering the judgment of the Supreme Court, this petition is required to be allowed, as the authority has not stated in the order as to on what basis it has reached the subjective satisfaction that on presenting the bail application, the petitioner will be released on bail, even though there is no sufficient material in this behalf for coming to the said conclusion. This petition is accordingly allowed. The order of detention is quashed and set aside. It is ordered that the petitioner be released forthwith unless he is required in connection with any other case. Rule is made absolute. ( P.B. Majmudar, J. ) *** (apj)