IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4221 of 2001 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 Civil Judge? : NO -------------------------------------------------------------- RAJESH @ RAJU @ SALMAN GOPALBHAI PATEL Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4221 of 2001 MR NM KAPADIA for Petitioner No. 1 MR SS PATEL AGP for Respondents No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 27/11/2001 ORAL JUDGEMENT By means of filing this petition, the petitioner has challenged the order of detention dated 15/5/2001 passed by the Police Commissioner, Surat City. 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 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 characterized 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, Commissioner of Police & Ors., reported in 1995 (2) GLR 1268. 3. I have heard learned advocate for the petitioner and also perused the material on record. According to learned advocate for the petitioner, there is a statement of Hiteshbhai Vinodbhai Modi running into 10 pages from page Nos.142 to 151. However, back side of page No.150 is missing and there is no continuity of page No.150. The learned counsel for the petitioner has submitted that though the detaining authority has relied upon the said statement which is a vital one, copy of the complete set has not been provided to the petitioner and thereby the detaining authority has prevented the petitioner from making an effective representation. Learned AGP has fairly admitted the same. 4. The learned counsel for the petitioner has further submitted that that the respondents have not filed affidavit. 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 an 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". 5. Since no affidavit has been filed either by the detaining authority or the State stating the reasons of not having continuity in the statement of witness Shri Hiteshbhai Vinodbhai on the backside of page No.150, the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points. 6. The petition is allowed. The impugned order of detention dated 15/5/2001 passed against the petitioner detenu is hereby quashed and set aside. The detenu namely Rajesh alias Raju alias Salman Gopalbhai Patel is hereby 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. (R.P.DHOLAKIA,J.) Rafik