FAIYAZ FARUK ANSARI v. STATE OF GUJARAT

CORAM : MR.JUSTICE R.P.DHOLAKIA Date of decision: 04/12/2001 ORAL JUDGEMENT (cid:9)By means of filing this petition, the petitioner has challenged the order of detention dated 10-5-2001 passed by the Police Commissioner, Surat City.

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 and also perused the material on record. According to learned advocate for the petitioner, the actual date of detention and date of passing the detention order is same i.e. 10-5-2001. It is submitted by him that the detentaining authority has relied upon six criminal offences registered against the detenu under Sec.379 of IPC in passing the detention order. It is also submitted taht statement of two witnesses have been recorded on 24-4-2001 and both the statements have been verified on 7-5-2001. It is also submitted by him that no affidavit has been filed either by the detaining authority or by the State in justifying the grounds attached with the detention order. He has relied upon a judgment delivered by this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat and Ors. reported in 2000(1) G.L.H. 393 wherein it has been held as under: "Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever an order of detention is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority".

4.(cid:9)It appears that no affidavit has been filed either by the detaining authority or the State of Gujarat and since no affidavit has been filed either by the detaining authority or the State explaining satisfactorily the grounds attached with the detention order, the order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points.