IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4729 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE R.P.DHOLAKIA ============================================================ 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 Civil Judge? : NO -------------------------------------------------------------- NARANDAS @ NARI TRIKAMDAS SINDHI Versus STATE OF GUJARAT 3RD SPECIAL LAND ACQUISITION -------------------------------------------------------------- Appearance: MR HR PRAJAPATI for Petitioner MR SJ DAVE, AGP for respondent-State. -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 28/06/2000 ORAL JUDGEMENT The petitioner 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 18-2-2000 passed by the District Magistrate, Bhavnagar, and he has been declared as bootlegger. 2. It is a settled principles of law that in order to bring a person within the expression " dangerous person" as defined in clause (c) of section 2 of the Gujarat Prevention of Anti-social Activities Act, 1985, ( for short " the Act of 1985 " ), 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 of M.J.Shaikh v. M.M.Mehta, Comissioner of Police & Ors. reported in 1995 (2) GLR 1268. 3. According to learned advocate for the petitioner, the detenu has submitted a representation to the State authority on 15-4-2000 which has neither been considered nor a copy of communication has been sent by the State authority to the detenu till date. As per the law laid down by this Court, this is a delay which has not been explained by the State. Even no affidavit has been filed either by the detaining authority or the State of Gujarat. It has been held in a judgment delivered by this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki vs. Police Commissioner, Surat and ors. reported in 2000 (1) G.L.H. 393 as under : "Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever on order of detention is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority. " 4. Since no affidavit has been filed either by the detaining authority or the State and the delay has not been sufficiently explained by the State, the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points. 5. The petition is allowed. The impugned order of detention dated 18-2-2000 passed against the detenu is hereby quashed. The detenu Narandas @ Nari Trikamdas Sindhi is hereby ordered to be set at liberty forthwith, if he is not required in any other case. Rule is made absolute with no order as to costs. (R.P.Dholakia, J.) *mithabhai