IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 5794 of 2002
For Approval and Signature:
Hon'ble MR.JUSTICE R.P.DHOLAKIA
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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 concerned : NO
Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?
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MANGALSING VIKRAMSING THAKUR
Versus
COMMISSIONER OF POLICE
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Appearance:
1. Special Civil Application No. 5794 of 2002
MS BANNA DUTTA FOR MR SATISH R PATEL for Petitioner No. 1
MS AMI K PATEL for Petitioner No. 1
GOVERNMENT PLEADER for Respondent No. 1-3
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CORAM : MR.JUSTICE R.P.DHOLAKIA
Date of decision: 01/10/2002
ORAL JUDGEMENT
By means of filing this petition, the petitioner
has challenged the order of detention dated 20-4-2002
passed by the Police Commissioner, Ahmedabad City who has
been declared as a dangerous person.
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
characterised as a habitual acts as envisaged in section
2(c) of the PASA Act. Further, besides a person being a
dangerous person, her 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
at length and also perused the material on record. But
learned advocate for the petitioner has restricted his
argument on the point that representation has been made
by brother of the petitioner on 20-5-2002 and same has
not been decided by the authority till 3-6-2002 and,
therefore, there is a delay.
4.In the instant case, it appears that though
representation has been sent on 20-5-2002, it remained
undecided till 3-6-2002. So, there is a delay. The Apex
Court relying upon a decision of the Constitutional Bench
in K.M.Abdulla Kunhi and B.L.Abdul Khader V. Union of
India, (1991) 1 SCC 476 : (1991 AIRSCW 362), has held in
a case of Rajammal Vs. State of Tamil Nadu and another
reported in AIR 1999 S.C. 684 as under:
“Detention-Unexplained delay of five days in
considering and disposing detenu’s
representation-Mere absence of Minister at
Headquarters not sufficient to justify
delay-Detention vitiated.”
It has been further held by the Apex Court in para 9 as
under:
“The position, therefore, now is that if delay
was caused on account of any indifference or
lapse in considering the representation such
delay will adversely affect further detention of
the prisoner. In other words, it is for the
authority concerned to explain the delay, if any,
in disposing the representation.It is not enough
to say that the delay was very short. Even
longer delay can as well be explained. so the
test is not the duration or range of delay, but
how it is explained by the authority concerned.”
5.In the matter before the Supreme Court in
Rajammal (supra), it appeared that there was a delay of
five days. For that also, explanation has been
putforward by the authority that Minister was on tour for
a period of two days. Still, Apex Court has stated that
five days consumed in deciding the representation of the
detenu is a delay. Whereas in the present case,
representation has been made by the brother of the detenu
on 20-5-2002 which has not been decided till 3-6-2002.
Hence, there is a delay of approximately fourteen days in
considering the representation. It is to be noted that
in this case no satisfactory explanation has been put
forward by the respondents. As representation has not
been decided by the authority in time, the rights
guaranteed under Article 22(5) of the Constitution of
India are violated which make the order of detention
illegal.
6.The petition is allowed. The impugned order of
detention dated 20-4-2002 passed against the detenu
Mangalsing Vikramsing Thakur is hereby quashed and set
aside. The detenu is 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.
Direct service is permitted.
(R.P.DHOLAKIA,J.)
radhan/