IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 8322 of 2001
For Approval and Signature:
Hon'ble MR.JUSTICE A.L.DAVE
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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
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MUSTUFA @ JUNGLI MIRSAB @ BASIRKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
1. Special Civil Application No. 8322 of 2001
MR AR SHAIKH for Petitioner No. 1
MR S.S. PATEL, AGP for Respondent State
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CORAM : MR.JUSTICE A.L.DAVE
Date of decision: 10/01/2002
ORAL JUDGEMENT
The petitioner came to be detained by virtue of
an order dated 6.8.2001 passed by the Police
Commissioner, Surat City, Surat in exercise of power
under Section 3 of the PASA Act.
2.The grounds of detention indicate that the
petitioner has been branded as a dangerous person. The
detaining authority has considered five registered
offences against the detenu. The detaining authority has
also considered statements of two anonimous witnesses
recorded on 2.7.2001 and 3.7.2001, which were verified on
18.7.2001 and passed the order on 6.8.2001.
3.The detaining authority observed that the
petitioner is required to be immediately prevented from
pursuing his illegal and anti-social activities and
resorting to less drastic remedy under ordinary law is
not possible as immediate prevention is necessary and
therefore, passed the order in exercise of powers under
Section 3 of the PASA Act.
4.The petitioner seeks to challenge the said order
by this petition under Article 226 of the of Constitution
of India on various grounds. The learned Advocate for
the petitioner Mr. Shaikh submitted that the order
stands vitiated only on the ground that the satisfaction
recorded by the detaining authority for urgent need for
detention is not genuine. To support his version, he
submitted that the statement of witnesses were recorded
on 2.7.2001 and 3.7.2001, whereas they were verified on
18.7.2001 and the order was passed on 6.8.2001 i.e.
after 18 days. If the satisfaction for the urgent
detention was genuine, the order would have been passed
immediately and therefore the order may be quashed.
5.Learned AGP Mr. S.S. Patel has opposed this
petition.
6.Having regard to the contention raised before
this Court, the grounds of detention indicate that the
detaining authority observed that the detenu is a
dangerous person, his activity results in disturbance to
public order, action against him under ordinary law will
have no effect on him, that it is not possible to prevent
him from pursuing his activities by taking action under
ordinary law and therefore, he is required to be
immediately detained under PASA. This subjective
satisfaction does not appear to be genuine for the reason
that the detaining authority had before him the proposal
atleast before 18.7.2001, he has verified the statement
on 18.7.2001 and thereafter order is passed only on
6.8.2001. If the satisfaction recorded by the authority
was really genuine, the action would have been taken much
earlier and order would have been passed earlier. The
satisfaction therefore is not genuine in law. The order
of detention therefore stands vitiated. The petition
deserves to be allowed only on this count.
7.The petition is therefore, allowed. Order of
detention dated 6th August, 2001 passed by the Police
Commissioner, Surat City, Surat is quashed and set aside.
Detenu Mustufa @ Jangli Mirsab Basirkhan Pathan be
released from detention forthwith, if not required in any
other case. Rule made absolute. No costs. Direct
service permitted.
(A.L.Dave,J.)
*/Mohandas