IDRISBHAI MAKHDUMBHAI DOLANI v. STATE OF GUJARAT

CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 30/07/2003 ORAL JUDGEMENT (cid:9)By means of filing this petition, the petitioner has challenged the order of detention dated 28-10-2002 passed by the Police Commissioner, Ahmedabad City by which he has been declared as a dangerous person.

2.(cid:9)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, his 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.(cid:9)I have heard learned advocate for the petitioner at length and learned AGP, Mr.R.C.Kodekar, for the respondents. I have also perused the material on record. Learned advocate for the petitioner has stated that only offence against the detenu was registered on 11-7-2003 while the impugned order was passed on 28-10-2002 and hence, there is a delay of more than eight and half months in passing the order. Learned AGP has fairly admitted the same. He has relied upon a judgment delivered by this Court reported in 1997(1) G.L.H. page 381 in the case of Elesh Nandubhai Patel Vs. Commissioner of Police, Ahmedabad City and Ors. more particularly at para 21 which reads as under: "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. State of U.P. reported in AIR 1990 SC 516 and Pradeep Nilkanth Vs. S. Ramamurthy reported in 1993(2) Suppl. SCC 61."

4.(cid:9)It appears that last offence registered against the petitioner was dated 11-7-2002 and order of detention was passed on 28-10-2002 based on this offence and hence, there is a delay of more than eight and half months in passing the order. No satisfactory explanation is forthcoming for the delay caused in passing the order of detention. Therefore, in view of the above judgment relied upon by the learned advocate for the petitioner, the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points.