MUKESH KARSHANBHAI DADHANIYA v. DISTRICT MAGISTRATE BHARUCH & Ors.

CORAM : MR.JUSTICE C.K.BUCH Date of decision: 21/06/2002 ORAL JUDGEMENT

1.(cid:9)In this petition under Article 226 of the Constitution of India, the petitioner- detenu has challenged the legality and validity of the order of detention dated 12.1.2002 passed by the Distinct Magistrate, Bharuch against him in exercise of the powers conferred on him by Section 3(2) of The Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the PASA Act) the petitioner-detenu.

2.(cid:9)The petitioner is one of the co-accused detained under the PASA branded as "dangerous person" for the crime registered with Padra Police Station being CR No. I.43/2001 dated 30.10.2001 under Sections 285, 336, 379, 511, 120-B, 304, 381, 337, 447, 438, 34, 35, 37, 111, 113, 119 of IPC, Sections 3(1)(2), 4, 13 of Damages to Public Properties Act and Section 15(2) of Indian Petroleum Pipeline Act.

3.(cid:9)Ld. counsel Mr. Patel appearing for the petitioner has pointed out that four co-accused persons connected with said crime were also detained under the PASA by the very authority and the same are set at liberty by the Court by quashing and setting aside the order of detention passed against those four co-accused persons. Computer copy of the oral judgment in respect of one of the co-accused delivered by this Court in Spl.C.A. No. 2882/2002 ( Coram : R.P.Dholakia,J ) decided on 8.5.2002 is tendered before this Court by ld. counsel Mr. Patel which is taken on record. Mr. Patel has taken me through the number of grounds raised by the petitioner while assailing the validity of the order of detention and decisions referred in the memo. However, Mr. Patel has mainly focussed his arguments on the ground mentioned in para-18 of the petition. I would like to reproduce the same which reads as under :- "(cid:9)The petitioner submits that there is one offence alleged to have been registered against the petitioner and that incident said to have been occurred on 30.10.2000.

The petitioner submits that the petitioner is released on bail on 19.10.2001 by the Competent Court. The petitioner further states that first order of the detention is passed on 30.11.2001 and second order of detention is passed on 12.1.2002. The petitioner also submits that even if the date of the first order is taken into consideration, then also obviously, the second order of detention is also bad in law on the said Court. " (cid:9)While enlarging the arguments on this point, Mr. Patel has submitted that the order passed by the detaining authority is delayed order and this delay would affect adversely the legalilty and validity of the order of detention. Referring to the decision in the case of Elesh Nandubhai Patel v/s Commissioner of Police, Ahmedabad City & Ors. reported in 1997(1) GLH P.381, it is submitted that date of incident and the date of arrest of the petitioner should be considered as relevant date and no action either of sponsoring authority or of detaining authority would wipe out the delay and delay caused cannot brought into the proximity with the date of detention.

I would like to quote relevant part of para-21 of the above-cited decision which reads as under:- "(cid:9)There appears to be some substance in the contention of the petitioner that these two unregistered cases have been referred only with a view to cover up the gap or to give life to a stale case. This unexplained delay makes a ground of detention not proximate, vitiating the order of detention itself. If I am to buttress my findings, I would say the reference may be made to the decision of the Supreme Court in Anand Prakash v/s State of U.P. reported in AIR Rammurthy reported in 1994(2) Suppl.SCC 61."

4.(cid:9)Mr.Patel, ld. counsel for the petitioner has, therefore, submitted that on the ground of parity as well as on the ground of delay in passing the order under challenge, the impugned order of detention requires to be quashed and set aside.

5.(cid:9)In view of the facts and circumstances of the case and the fact that co-accused detained under PASA have already been released by this Court by quashing and setting aside the order of detention passed under PASA Act, the order of detention requires to be quashed on the ground of detention. When the order of detention came to be quashed by this Court in one of the petitions filed by the co-accused, officers of the department were present in the Court and the facts of the case and crime registered by the police were considered at length. Hence, on the ground of parity, order of detention requires to be quashed and set aside. It is submitted that the petitioner has been granted bail by the competent court, but to the best information available to the ld. counsel, till date the order of bail is neither cancelled by the same Court or by the higher forum. On the ground of delay in passing the order of detention, the impugned order of detention requires to be quashed and set aside.

6.(cid:9)For the reasons aforesaid, this petition is allowed. Impugned order of detention dated 12.1.2002 passed by District Magistrate, Mehsana is hereby quashed and set aside and detenu is hereby ordered to be set at liberty forthwith if he is not required to be detained in any other case. Rule is made absolute. (cid:9)Direct Service is permitted. 21-6-2002(cid:9) (cid:9)[ C. K.BUCH, J] *rawal (cid:9) (cid:9)