CAHNDRESH BHUPATBHAI JOSHI THRO. BHUPATBAI JOSHI v. STATE OF GUAJRAWT

CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA Date of decision: 17/12/2003 ORAL JUDGEMENT (cid:9)The present petition has been filed by the petitioner - detenu who has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as `the Act of 1985') by order dated 7/4/2003 passed by the Police Commissioner, Rajkot City, and he has been declared as "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 and also perused the material on record. According to learned advocate for the petitioner, the impugned detention order is passed by the detaining authority relying upon three offences registered against the detenu under Indian Penal Code and statements of two independent witnesses. Learned counsel for the petitioner has assailed the impugned detention order on various grounds, as stated in the memo of the petition. According to the learned counsel for the petitioner on the alleged offences registered against the petitioner under Indian Penal Code, the detention order can not be passed against the petitioner. He has further submitted that the detaining authority has recorded statements of two witnesses just to fill up the gape between the date of last offence and the date of order of detention. He has further submitted that the detaining authority has mechanically claimed privilege under Sec.9(2) of the Act, and not provided name and addresses of the witnesses and therefore, the petitioner detenu is prevented from making an effective representation. He has also submitted that the alleged offence registered against the petitioner is a question of law and order and not public order, but the detaining authority has failed to appreciate the difference between law and order and public order. Learned counsel for the petitioner has further submitted that even no affidavit has been filed by the respondents justifying grounds of detention. In support of her arguments, 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, the relevant portion of which reads 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)Since no affidavit has been filed by the respondents authorities, and no explanation is forthcoming justifying the grounds of detention of the detention order, the impugned order of detention is illegal and the same cannot be sustained. Learned advocate for the petitioner does not press any other points.