AHMEDKHAN MAHAMADKHAN PATHAN v. COMMISSIONER OF POLICE

CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 21/03/2003 ORAL JUDGEMENT #. By filing this petition the father of the detenu has challenged the detention order dated 13.8.2002, by which, the detenu is detained under the provisions of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short "PASA") as a "dangerous person". #. Along with the detention order, he was served with the grounds of detention of the same date. In the said grounds, there is a reference about one criminal case, which is filed against the detenu, being CR No.0013/2002. It is alleged against the detenu that the detenu is keeping arms with him illegally and that he is a dangerous person. The particulars about his illegal activities are given in the detention order. The detaining authority, after having been satisfied about illegal activities of the detenu, has passed the aforesaid detention order. The said detention order is challenged by the detenu on various grounds. #. At the time of hearing of this petition, learned advocate for the petitioner submitted that, at the relevant time, the detenu was in judicial custody when the detention order is passed against the detenu.

It is submitted that, the authority has not properly considered as to why still it is necessary to detain the detenu by way of preventive detention when the detenu is in judicial custody. For that purpose, learned advocate has relied upon the decision of the Apex Court in the case of Amritlal and other Vs. Union Government, reported in AIR 2000 SC 3675, wherein the Apex Court in paras 4, 6 and 7 observed as under.: "4.(cid:9)In Augustin's decision (1994 Supp (1) SCC 597) (supra) this Court also placed strong reliance on an earlier but oft-cited decision of this Court in Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : (AIR 1986 SC 2090 : 1986 CriLJ 1959) wherein it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. This Court held that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail.

The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. It is in this perspective as above, that the recording of the concerned officer in the matter under reference ought to be noticed and the same reads as below:- "Even though prosecution proceedings under Narcotic Drugs and Psychotropic Substances Act, 1985 have been initiated against Shri Amritlal I am satisfied that there is compelling necessity in view of the likelihood of his moving an application for bail and in the event of his being granted bail, the likelihood of his indulging in illicit traffic in narcotic drugs as is evident from the trend of his activities, to detain him under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988." (cid:9)xxxxx(cid:9) (cid:9)xxxxxx(cid:9) (cid:9)xxxxxxx

6.(cid:9)The requirement as noticed above in Binod Singh's case (AIR 1986 SC 2090 : 1986 Cri LJ 1959) (supra) that there is `likelihood of the petitioners being released on bail' that however is not available in the reasonings as provided by the concerned officer. The reasoning available is the `likelihood of his moving an application for bail' which is different from `likelihood to be released on bail'. This reasoning, in our view, is not sufficient compliance with the requirements as laid down.

7.(cid:9)The emphasis however, in Binod Singh's case (supra) that before passing the detention order the concerned authority must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order. (cid:9)xxxxx(cid:9) (cid:9)xxxxx(cid:9) (cid:9)xxxxx" #. Mr.Pancholi, learned AGP, however, tried to justify the detention order even though the petitioner is in judicial custody. In the instant case, the detaining authority has stated in the order that the detenu is in judicial custody and that he may be released on bail at any point of time. However, the detaining authority has not stated as to on what material it has reached the conclusion that the detenu may be released on bail. The authority was required to state as to on what basis the authority has reached the said conclusion that the detenu (cid:9) (cid:9) may be released on bail. In that view of the matter and in view of the judgment of the Apex Court, as referred above, the order of detention is required to be quashed and set aside. #. In view of what is stated above, the petition is allowed. The order of detention dated 13.8.2002 is quashed and set aside. The detenu Mahammadkhan Ahmedkhan Pathan is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made absolute accordingly. (cid:9) (cid:9)(P.B.Majmudar,J) (pathan) (cid:9) (cid:9) (cid:9)