JUDGMENT
A.P. Ravani, J.
1. The order of detention dated April 2, 1986 which has been passed under the relevant provisions of the Gujarat Prevention of And Social Activities Act, 1985 (hereinafter referred to as ‘the Act’) by the detaining authority i.e., Commissioner of Police, Ahmedabad and pursuant to which the detenu has been arrested on Nov. 29, 1986, is challenged by the detenu on various grounds. The petitioner/detenu has been arrested inter alia on the ground that he is a bootlegger as defined under the provisions of the Act and that his activity as bootlegger was prejudicial to the maintenance of public order and, therefore, with a view to preventing him from acting in that manner in future he was required to be detained. The learned Counsel for the petitioner has challenged the legality and validity of the detention order on various grounds. But in the facts and circumstances of the case, it is not necessary to go into detail of other grounds since the petitioner succeeds on one ground alone.
2. It is contended by the learned Counsel for the petitioner that when the order of detention was passed on April 2, 1986, the detaining authority did not consider the fact that the detenu was released on bail by a Competent Court on March, 28, 1986. In the grounds of detention it is mentioned that the detenu was involved in a criminal case registered at CR. No. 157/8.6 of Shahar Kotada Police Station for offences under Sections 143, 147, 148, 149, 336, 427, 506(2), 186 and 188 of the Indian Penal Code, read with Section 135(G) of the Bombay Police Act and offence under Section 25(c) of the Arms Act. From the grounds of detention furnished to the detenu and which have been produced on record it appears that the detaining authority took into consideration that the detenu was in custody. In fact a statement showing that the detenu was arrested on March 26, 1986 with regard to the aforesaid offences has been furnished to him. But the detaining authority has not taken into consideration the fact that the detenu though involved in non-bailable offence was released on bail by a competent court on March 28, 1986. It appears from the grounds of detention furnished to the detenu that the detaining authority was not alive to this aspect. As a proposition of law it can never be said that a person who is detained for an offence under the ordinary law of land cannot be detained under the relevant provisions of laws relating to preventive detention. As laid down by the Supreme Court in the case of Alijan Mian v. District Magistrate, Dhanbad, , a person can be detained under the relevant previsions of Preventive Detention Law even when he is in jail custody pending criminal case on the date of passing of the order of detention. All that is necessary for the detaining authority is that he should be satisfied that if the detenu was enlarged on bail of which there may be every likelihood, it was necessary to prevent him from acting in a manner prejudicial to the public order. The aforesaid decision of the Supreme Court indicates that the detaining authority should be alive to this aspect of the case. However, in the instant case, from the grounds of detention it appears that the detaining authority was not at all aware about the release of the detenu on bail by a competent court. In such a situation, the decision of the Supreme Court in the case of Anant Sakharam v. State of Maharashtra , would apply. Therein there was no mention in the ground of detention about the fact that detenu was an under trial prisoner and he was arrested in connection with certain cases and that he was released on bail, in all the case;} pending against him. This fact was considered by the Supreme Court as indication of clear non application of mind on the part of the detaining authority while passing the order of detention. Similar is the situation in this case also. Going through the order of detention and the grounds furnished to the detenu it appears that there is no mention about the fact that the detenu had already been released by a competent court in connection with the criminal case registered at C.R. No. 157/86 of Shahar Kotada Police Station. In view of this position it has got to be held that the satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind to this most relevant aspect.
3. In the result, the petition is allowed. The order of detention dated April 2, 1986, produced at Annexure A to the petition is quashed and set aside. The petitioner/detenu Salamkhan Bachchakhan Pathan is ordered to be released forthwith if not required in any others case. Rule made absolute.