IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 3929 of 1996
For Approval and Signature:
Hon'ble MR.JUSTICE K.R.VYAS
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
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?
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IBRAHIM GULAM MALEK
Versus
STATE OF GUJARAT
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Appearance:
MR.H.R.PRAJAPATI FOR M/S THAKKAR ASSOC.,Advocates
for the petitioner.
MR.U.R.BHATT, learned Assistant Government Pleader
for the respondents.
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CORAM : MR.JUSTICE K.R.VYAS
Date of decision: 24/07/96
ORAL JUDGEMENT
District Magistrat, Surat, in exercise of the
powers vested in him under sub-section (1) of section 3
of the Gujarat Prevention of Anti-social Activities Act,
1985 has detained Ibrahim Gulam Malek by the order of
detention dated 6-3-96 . It is this order of detention
which is challenged by the petitioner-detenu by way of
this petition under Article 226 of the Constitution of
India.
In the grounds of detention, supplied to the
detenu, the detaining authority has placed reliance on
two criminal cases of the year 1994 and one criminal case
of the year 1996 registered with the Mangrol Police
Station. The detaining authority has also relied on the
statements of four witnesses recorded on 21-2-1996 making
allegations against the detenu about his anti-social and
naferious activities. Considering this material, the
detaining authority was of the view that the detenu is a
“dangerous person ” within the meaning of section 2 (c)
of the said Act and with a view to preventing the detenu
from acting in any manner prejudicial to the maintenance
of public order, it was necessary to pass the order of
detention against him and, therefore, the impugned order
is passed, which is under challenge in the present
petition.
Mr. Prajapati, appearing for the petitioner, has
submitted that it is a clear case of non-application of
mind on the part of the detaining authority in passing
the impugned order of detention inasmuch as even though
the detenu was arrested with respect to the offence
registered against him at C.R.No. 11/96 and was granted
bail , the said material was not placed before the
detaining authority by the sponsoering authority and
consequently, therefore, the copies of the bail
application and the bail order were not supplied to the
detenu with the result that the detenu could not make an
effective representation against his detention and,
therefore, the impugned order of detention is liable to
be quashed and set aside.
The contention raised by Mr. Prajapati appears
to be well founded. In the grounds of detention supplied
to the detenu, it is stated by the detaining authority
that the detenu is absconding since 7-2-96 the day on
which the offences punishable under sections 325, 506 (2)
and 114 of the Indian Penal Code and section 25 (1) (c)
of the Arms Act were registered against him vide
C.R.No.11/96 before the Mangrol Police Station. The
detenu was arrested on 25-2-96 and was released on bail
with respect to the said C.R.No.11/96 on 26-2-96 by the
learned JMFC, Mangrol which is evident from the certified
copy of the bail order produced by Mr. Prajapati. The
proposal to detain the detenu was sent by the concerned
officer of the Mangrol Police Station on 27-2-96.
Therefore, the concerned police officer was expected to
know about the bail granted to the detenu on the previous
day i.e. 26-2-96. Surprisingly the same was not placed
before the detaining authority. Hence this vital
document escaped the consideration of the detaining
authority and , on the contrary, a finding is recorded
that the detenu was absconding since 7-2-96. In view of
this, there is no manner of doubt that the impugned order
came to be passed with clear non-application of mind and
without considering the vital document of the bail order.
Since a copy of the said document was not supplied to the
detenu, he is denied his valuable right of making an
effective representation against his detention guaranteed
under Article 22 (5) of the Constitution of India and,
therefore, the continued detention of the detenu is
vitiated.
In the result, this petition is allowed. The
impugned order of detention dated 6-3-96 is quashed and
set aside. The detenu Ibrahim Gulam Malek is directed to
be set at liberty forthwith if his detention is not
required for any other purpose. Rule is made absolute
accordingly with no order as to costs.
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True copy