IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9040 of 2004 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? -------------------------------------------------------------- RATANBEN W/O UMESHBHAI G. TANDEL Versus THE STATE OF GUJARAT THRO' THE DY. SECRETARY -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 9040 of 2004 MR ZUBIN F BHARDA for Petitioner No. 1 MR RC KODEKAR, AGP for Respondent No.3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA Date of decision: 02/11/2004 ORAL JUDGEMENT 1. 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 21.04.2004 passed by the District Magistrate, Navsari and she has been declared as bootlegger. 2. It is now well settled that unless the activities of a person as bootlegger has disturbed the maintenance of public order, she cannot be detained under the Act. Reliance is placed on a decision of the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491. 3. I have heard learned advocate for the petitioner at length and learned AGP, Mr.R.C.Kodekar for the respondents. I have also perused the material on record. Learned advocate for the petitioner has stated that two prohibition cases being C.R.No.1270/03 dated 24.09.2003 and C.R.No.289/04 dated 21.02.2004 have been registered with Gandevi Police Station, against the detenu and impugned detention order is passed on 21.04.2004 and therefore, there is a delay of two months in passing the order. Learned advocate for the petitioner has submitted that two statements of independent witnesses have been recorded by the detaining authority on 26.03.2004 and 02.04.2004 respectively and the same have been verified by the detaining authority on 10.04.2004 and 09.04.2004 respectively. He 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 21.03.2004 and order of detention was passed on 21.04.2004 based on this offence and hence, there is a delay of two months in passing the order. It has also been argued by the learned advocate for the petitioner that the detenu has made a representation to the concerned authority on 14.07.2004, but the same has been rejected by the detaining authority on 21.07.2004. Learned AGP has fairly admitted the same. Though the presentation dated 14th July, 2004 has been received by the concerned authority and the same has decided on 21.07.2004. Though the affidavit-in-reply has been filed by the detaining authority no satisfactory explanation has been given for the delay caused in deciding the representation and for the delay caused in passing the order of detention. Therefore, in view of the above judgments relied upon by the learned advocate for the petitioner, the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points. 5. In view of the above, the petition is allowed. The order of detention dated 21.04.2004 passed against the detenu Ratanben w/o. Umeshbhai G. Tandel is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute accordingly. Direct service is permitted. (R.P.DHOLAKIA,J.) (vijay)