THAKOR GIRISHJI ALIAS GIDHAJI JENAJI Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) Heard Ms.D.R.Kachhava, learned advocate appearing on behalf of the petitioner and Mr.H.L.Jani, learned AGP on behalf of the respondents. In the present petition, the order of detention dated 6th January, 2001 which actually effected on 10th January, 2001 has been challenged by the petitioner under Article 226 of the Constitution of India. The order of detention has been passed by the District Magistrate, Mehsana under Section 3[1] of the PASA Act. The present petitioner has been detained in District Jail Bhavnagar as Class-II detenu. The grounds of detention have been communicated and supplied to the petitioner under Section 9[1] of the PASA Act. According to the grounds of detention, three offences have been registered against the present petitioner under the provisions of the Bombay Prohibition Act and the last offence registered is dated 6th November, 2000. The statements of the secret witnesses were recorded on 26th November, 2000 and the same has been verified by the detaining authority on 4th January, 2001. The detaining authority has claimed privilege under Section 9[2] of the PASA Act and accordingly not disclosed the names, addresses and occupation of the secret witnesses. That three unregistered offence have been noted dated 5th October, 2000, 21st October, 2000 and 23rd November, 2000 on the basis of the statements of the secret witnesses. However, it is noted that no reply has been filed by the respondents.

(2.) The co-detenu of the present petitioner namely Kadvaji @ Bharatji Fulaji against whom also detention order has been passed on 6th January, 2001 which also came to be actually effected on 10th January, 2001. However, this Co-accused - Kadvaji @ Bharatji Fulaji has also challenged the detention order before this Court by preferring Special Civil Application No.3849 / 2001, wherein also, in all two offence have been registered against the co-detenu as registered against the present petitioner. Similarly, statements of the secret witnesses were also recorded on 26th November, 2000 and verified by the detaining authority on 4th January, 2001. Unregistered offence also noted against the co-detenu as noted against the present petitioner and the detaining authority has also claimed privilege under Section 9[2] of the PASA Act and no reply has also been filed by the respondents in the case of the co-detenu.

(3.) Learned advocate Ms.D.R.Kachhava has challenged the detention order on various grounds but according to her submission, two contentions are enough for vitiating the detention order. A specific contention has been raised as to claiming of privilege under Section 9[2] of the Act without examining the genuineness of the statements made by the secret witnesses in para-12 of the petition and similarly in para-14, contention of delay has also been raised by the petitioner. That looking to the last offence registered against the present petitioner on date 6th November, 2000 and the order of detention has been passed on 6th January, 2001. Therefore, there was delay in passing the detention order. However, such delay has remained unexplained because no reply has been filed by the respondents. She relied upon the decisions of this Court in respect of claiming of privilege by the detaining authority and submitted that some extra care which ought to have been taken, has not been taken by the detaining authority. She also submitted that subjective satisfaction is not established from the record and she relied upon following decisions of this Court.