IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6805 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO 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? -------------------------------------------------------------- VINODBHAI ACHCHHELAL JAYSWAL Versus POLICE COMMISSIONER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 6805 of 2003 MS BANNA S DUTTA for Petitioner No. 1 MR RC KODEKAR AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 28/07/2003 ORAL JUDGEMENT The present petition has been filed by the petitioner - detenu who has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as `the Act of 1985') by the order dated 23/2/2002 passed by the Commissioner of Police, Surat City and he has been declared as "dangerous person". 2. It is a settled principle of law that in order to bring a person within the expression "dangerous person" as defined in clause (c) of section 2 of the Act, there should be positive materials to indicate that such person is habitual of committing or attempting to commit or abetting the commission of offences which are punishable under Chapter XVI or XVII of Chapter V of the Arms Act and that single or isolated act falling under the said Chapters cannot be characterised as a habitual acts as envisaged in section 2(c) of the PASA Act. Further, besides a person being a dangerous person, his activities should also fall within the ambit of expression `public order'. A distinction has to be drawn between the `law and order' and `maintenance of public order'. A reference may be made to M.J.Shaikh V. M.M. Mehta, Commissioner of Police & Ors., reported in 1995 (2) GLR 1268. 3. I have heard learned counsel for the petitioner at length and learned AGP, Mr.Kodekar for the respondents. I have also perused the material on record. Learned counsel for the petitioner has stated that FIVE offences have been registered against the detenu and last offence has been registered on 1/11/2002, relying upon which, the detaining authority has passed the impugned detention order on 23/2/2003, and hence, according to the learned counsel for the petitioner detenu, there is a delay of more than three months in passing the order. Learned AGP has fairly admitted the same. In support of the arguments, learned counsel for the petitioner detenu has relied upon a judgment delivered by this Court reported in 1997(1) G.L.H. page 381 in the case of Elesh Nandubhai Patel Vs. Commissioner of Police, Ahmedabad City and Ors. more particularly at para 21 which reads as under: "There appears to be some substance in the contention of the petitioner that these two unregistered cases have been referred only with a view to cover up the gap or to give life to a stale case. This unexplained delay makes a ground of detention not proximate, vitiating the order of detention itself. If I am to buttress my findings, I would say the reference may be made to the decision of the Supreme Court in Anand Prakash V. State of U.P. reported in AIR 1990 SC 516 and Pradeep Nilkanth Vs. S. Ramamurthy reported in 1993(2) Suppl. SCC 61." 4. It appears that last offence registered against the petitioner was dated 1/11/2002 and order of detention was passed on 23/2/2003 and hence, there is a delay of more than three months in passing the order. No affidavit has been filed by the respondents explaining the delay satisfactorily, caused in passing the order of detention. Therefore, in view of the above judgment relied upon by the learned counsel for the petitioner, the order of detention is illegal and the same cannot be sustained. Learned counsel for the petitioner does not press any other points. 5. In view of the above, the petition is allowed. The impugned order of detention dated 23/2/2002 passed against the detenu is hereby quashed and set aside. The detenu namely Shree Vijay Bharat alias Kanjibhai Chauhan is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly with no order as to costs. D.S. Permitted. (R.P.DHOLAKIA,J.) Rafik