IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9526 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 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? -------------------------------------------------------------- AYYUB KALUBHAI PATHAN Versus STATE OF GUJARAT -THROUGH- -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9526 of 2004 MR HR PRAJAPATI for Petitioner No. 1 MR MR PRAJAPATI for Petitioner No. 1 MS HB PUNANI, AGP for Respondent No. 1-3 RULE SERVED for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 22/12/2004 ORAL JUDGEMENT 1. Heard ld. counsel Mr. MR Prajapati for the petitioner detenu and ld. AGP Ms. HB Punani for the other side. Affidavit-in-reply filed by Commissioner of Police, Surat City, tendered today by ld. AGP Ms. Punani is taken on record. 2. By this petition under Article 226 read with Articles 21 & 22(5) of the Constitution of India, the petitioner detenu has challenged the legality and validity of the order of detention dated 22.06.2004 passed by the Police Commissioner, Surat City, in exercise of the powers conferred on him by Section 3(2) of The Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the PASA Act) against the petitioner-detenu. The petitioner detenu has been branded as "boot-legger" as defined under Sec.2(b) of the PASA ACt. 3. The grounds for detention supplied to the detenu petitioner indicate that the petitioner was found involved in solitary single offence punishable under Sections 66(1)B, 65AE of the Bombay Prohibition Act registered with Athwa Lines Police Station on 08.06.2004. It is recorded by the authority that the petitioner is a "boot-legger" and is involved in the activities dangerous to the society. It also transpires that the detaining authority has placed reliance on the statements of two witnesses recorded by the Sponsoring Authority on 11.06.2004. Those statements were verified by the detaining authority on 19.06.2004. 4. The petitioner has challenged the legality and validity of the order of detention on number of grounds as mentioned in the memo of the petition. Ld. counsel Mr. Prajapati for the petitioner, has taken this Court through the contentions raised in the petition. However, he has focussed his arguments mainly on two grounds. The first ground pressed into service by ld. counsel Mr. Prajapti is that the petitioner has been wrongly branded as "bootlegger" and his activities are dangerous to maintenance of public order, as he was involved in solitary offence under Bombay Prohibition Act. The statements have been recorded only with a view to prepare the case to obtain order of preventive detention and they are recorded mechanically and so those statements do not inspire any confidence. The second ground pressed into service is that as per the settled legal position of the decision of the Apex Court in the case of Sohanlal Surajram Visnoi v/s State of Gujarat & Ors., 2004(2) GLR 1051, the impugned order of detention requires to be quashed as the case the present case is squarely covered by the ratio of the aforesaid decision. 5. I have gone through the above-cited decision. For the sake of convenience, I would like to quote relevant paras 4 & 5 of the said decision:- "4. Article 22(3) of the Constitution of India expressly provides that the safeguards contained in Art.22(1) and 22(2) of the Constitution are not to apply to preventive detention. Article 22(4) of the Constitution provides and opens with double negative, put in positive form, and in its real substance, means that a law which provides for preventive detention for a period longer than three months, shall contain all the provisions prescribed in clauses (4) and (5) of Article 22 of the Constitution. Article 22(5) of the Constitution prescribes that when any person under a preventive detention law is detained, the authority making the order, shall as soon as may be, communicate to such person, the grounds on which the order has been made, and shall afford him with the earliest opportunity of making a representation against the order. Article 22(5) of the Constitution is of general importance and operation in respect of every detention order made under any preventive detention law. 5. In this group of petitions, all the detenus, except one in Special Civil Application No.825 of 2003, are treated and described as "bootleggers" as defined under Sec.2(b) of the P.A.S.A. Act and only one offence is registered against each detenu under the provisions of the Bombay Prohibition Act, 1949. Whereas in Special Civil Application No.825/2003, the detenu is treated as "dangerous person" as defined in Sec.2(c) of the P.A.S.A. Act, and in this case also, a solitary incident is made basis for passing the detention order against him." So, accepting the ratio and reasons assigned by this Court in the above-cited decision, impugned order of detention requires to be quashed and set aside without entering into the merits of the other contentions raised in the petition. 6. For the reasons aforesaid, this petition is allowed. Impugned order of detention dated 22.06.2004 passed by the Police Commissioner, Surat City, is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute. Direct Service is permitted. [ C. K.BUCH, J] *rawal