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SCA/15716/2005 6/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15716 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE ANANT S.DAVE
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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SEEMAKHAN
SALIMKHAN PATHAN - Petitioner(s)
Versus
COMMISSIONER
OF POLICE & 2 - Respondent(s)
=================================================
Appearance
:
MR CHETAN B RAVAL for
Petitioner(s) : 1,
RULE SERVED BY DS for Respondent(s) : 1 -
2.
GOVERNMENT PLEADER for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S.DAVE
Date
: 05/09/2005
ORAL
JUDGMENT
By
filing this petition, the petitioner detenue has challenged the
detention order 02.05.005 passed by the Police Commissioner,
Ahmedabad City in exercise of powers conferred upon him under
Sub-section (1) of Section 3 of the Gujarat Prevention Anti-social
Activities Act, 1985 (?S the Act?? for short), as, the ?Simmoral
traffic offender?? and is required to be detained under the
preventive detention, so that, he may not continue with such type of
illegal activities.
Alongwith
the detention order, the detenue was also served with the grounds of
detention of the same date. In the said grounds, there is a
reference of two criminal cases which are filed under the Immoral
Traffic (Prevention) Act. In the grounds of detention, the
statements of certain witnesses have been recorded.
Learned
advocate appearing on behalf of the petitioner has submitted that
when the detention order dated 02.05.2005 came to be passed, the
petitioner was in judicial custody in connection with two offences
registered against him under the Immoral Traffic (Prevention) Act
and there was no likelihood of continuing anti-social dangerous
activities so as to disturb the public order by the detenue. It is
submitted that there was no material before the detaining authority
in respect of filing of the bail application or in respect of
likelihood of petitioner being released on bail, which results i
non-application of mind vitiating the detention order.
On
the other hand, Mrs. H.B.Punani, learned Assistant Government
Pleader has tried to support the impugned detention order passed
against the petitioner. Affidavit in reply is filed on behalf of
respondent no.2.
The
impugned order came to be challenged by the petitioner detenue on
various grounds. It is not in dispute that the petitioner was in
judicial custody when the detention order dated 02.05.2005 came to
be passed by the detaining authority. Therefore, when the petitioner
was in judicial custody, there was no likelihood of continuing
antisocial dangerous activities as a ?SImmoral Traffic Offener??
so as to disturb the public order by the detenue. It is pertinent to
note that likelihood of filing of bail application by the petitioner
and likelihood of releasing the petitioner on bail, both are
entirely different and separate propositions. It is required to be
noted that there must be some credible material before the detaining
authority to reach to the subjective satisfaction either about
likelihood of filing of bail application and/or likelihood of
petitioner being released on bail. The facts of the present case are
squarely covered by the decision of the Apex Court in the case of
Amrutlal Vs. Union of India, reported in AIR 2000 SC 3675 wherein
the Apex Court observed that there must be cogent materials before
the officer passing the detention order that the detenue was likely
to be released on bail. Admittedly, the petitioner was in judicial
custody and there was no material before the detaining authority to
reach to the subjective satisfaction that the detenue was likely to
file the bail application and was likely to be released on bail and
in absence thereof, the subjective satisfaction of the detaining
authority is vitiated, and, therefore, the impugned detention order
is required to be quashed and set aside.
It
is to be noted that other co-detenues viz. Sujay @ Devo @
Devadhikari S/o. Satyadhikari Bangali and Irphan @ Karan Yusufbhai
Chipa have already been ordered to be released by this Hon’ble Court
vide order dated 16.08.2005 passed in Special Civil Application
No.12151 of 2005 and vide order dated 09.08.2005 passed in Special
Civil Application No.11448 of 2005 respectively.
In
view of what is stated above, the petition is allowed. The order of
detention dated 02.05.2005 is quashed and set aside. The detenue
Seemakhan Salimkhan Pathan is ordered to be set at liberty forthwith
if not required in any other offence by any other authority. Rule is
made absolute accordingly. Direct Service is permitted.
(ANANT S. DAVE,
J.)
amit
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