MAULIK @ PAPPU JAGDISHBHAI PATEL v. COMMISSIONER OF POLICE

CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA Date of decision: 20/09/2004 ORAL JUDGEMENT (cid:9)The detenu has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as `the Act of 1985') by the order dated 22-3-2004 passed by the Police Commissioner, Ahmedabad City, and he has been declared as bootlegger.

2.(cid:9)It is now well settled that unless the activities of a person as bootlegger has disturbed the maintenance of public order, he cannot be detained under the Act. Reliance is placed on a decision of the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad & Ors. reported in AIR 1989 SC 491.

3.(cid:9)Heard learned advocate for the petitioner and the learned AGP for the State. Also perused the record. It is submitted by the learned advocate for the petitioner that only a solitary offence has been registered against the detenu at Satellite Police Station being Prohi.C.R.No.5022 of 2004 on 13-3-2004. Drawing my attention towards page 22 page 3 of the compilation, Mr.N.M.Kapadia has contented that when the order of detention was passed, the detenu was in police custody in the aforesaid offence which aspect ought to have been considered by the authority while passing the detention order. In this connection, he has drawn my attention towards the case of Amritlal and Others Vs. Union Govt. Through Secy., Ministry of Finance and Others, 2001 SCC (Cri) 147 wherein it was held at Head note as under: "Preventive Detention--Detention order-Subjective satisfaction--Detenu already in jail-Detaining authority must be satisfied on the basis of available cogent material about likelihood of the detenu being released on bail and not merely about likelihood of his moving application for bail--In absence of such satisfaction detention order cannot be sustained--Prevention of Illicit Traffic in Narcotic drugs and Psychotropic Substances act, 1988, S.3(1)"

4.(cid:9)It is further submitted that co-detenu has also been released by this Court vide oral judgment dated 14-9-2004 passed in Special Civil Application No.4475 of 2004 and hence, it is prayed that present applicant also may be released.

5.(cid:9)It seems that there is non-application of mind on the part of detaining authority as detenu was in judicial custody when the impugned order of detention was passed and hence, in view of the judgment rendered in Amritlal (supra) and also in view of the fact that co-detenu was also released by this Court while allowing Special Civil Application No.4475 of 2004 on 14-9-2004, the continued detention of the detenu is illegal and the same cannot be sustained.