IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 11519 of 2003 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? -------------------------------------------------------------- BHERUSINH MANSINH RATHOD Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 11519 of 2003 MS KRISHNA U MISHRA for Petitioner No. 1 MR AMRISH K PANDYA for Petitioner No. 1 MR RM CHAUHAN Ld. AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 15/10/2003 ORAL JUDGEMENT By way of this special civil application, the petitioner has challenged the order of detention passed against him by the Police Commissioner, Ahmedabad city on 9.6.2003 under the exercise of powers under sec. 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the PASA Act" for short). The petitioner was declared as 'bootlegger'. The grounds served upon the petitioner and placed on record reveal that the detaining authority relied upon the fact of registration of crimes against the petitioner on 6.6.2003 under sec. 66(1)(B), 65(A)(E), 81, 83 and 116(1)(B) of the Bombay Prohibition Act. In addition to this, the detaining authority also relied upon two in-camera statements as recorded by the sponsoring authority on 7.6.2003 and verified by the detaining authority on 8.6.2003 revealing unreported incidents occurred on 7.5.2003 and 15.5.2003. From the above material, the detaining authority passed the above said order of detention. Ld. advocate Ms. KU Mishra for the petitioner and ld. AGP Mr RM Chauhan for the respondents were heard at length. The affidavit in reply filed by the detaining authority as placed on record, is also taken into consideration. OUt of various grounds raised on behalf of the petitioner and controverted by ld. AGP, from the rival contentions, it appears that this matter can be considered and decided on sole ground whether the order is bad in law on account of non-application of mind by the detaining authority to the vital aspect of the matter. The grounds served upon the petitioner and placed on record, undisputedly, establishes that the petitioner was on police remand when order came to be passed and served upon the petitioner. In this respect, the detaining authority reached to the subjective satisfaction that the petitioner was likely to be surrendered to the judicial custody and on so surrendering, he was likely to move an application for bail and was likely to be released on bail by the court. It was also further observed in the grounds that on so releasing on bail, the petitioner was likely to indulge in illegal activities and, therefore, according to the detaining authority, the activities of the petitioner being prejudicial to the maintenance of public order, the petitioner was required to be detained under the PASA Act. Now, while going through the record and the grounds served, it clearly appears that the above satisfaction reached by the detaining authority, is based on no material. Nothing on record denotes that the petitioner was likely to be released on bail. The facts of this case, therefore, are fully covered by a decision of the Apex Court in the matter of Amrutlal and others vs. Union Government, though Secretary, Ministry of Finance and others, as reported in AIR 2000 SC 3675. Consequently, the order impugned must becomes bad in law and required to be quashed and set aside on the ground that the subjective satisfaction arrived at by the detaining authority is based on no material on vital aspect of the matter. In the result, this special civil application is allowed. The order impugned in this special civil application passed on 9.6.2003 by the Police Commissioner, Ahmedabad city under the PASA Act against the petitioner is quashed and set aside. The petitioner is directed to be set at liberty forthwith, if he is not required to be detained in jail for any other purpose. Rule made absolute with no order as to costs. DS Permitted. (J.R. VORA, J.) mandora/