ARUN KUNDUVALLAPIL KRUSHNA NAYAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. Tirmizi, for the petitioner and Mr. Jani, learned AGP for the respondent State. In this petition, the petitioner has challenged the impugned order of detention dated 25.11.2000 passed by the detaining authority under section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 ("the PASA Act" for short). The grounds of detention have been communicated to the petitioner under section 9(1) of the PASA Act and the petitioner has initially been detained at Jamnagar Jail as Class II Detenu. According to the record, initially, the detaining authority passed the order of detention on 20th October, 2000 against the petitioner but that order has subsequently been revoked by the detaining authority on technical ground that the petitioner who is Madrasi is not aware of the Gujarati language and, therefore, the documents were thereafter translated in Hindi and without releasing the petitioner from earlier detention, second order of detention dated 25th November, 2000 has been passed against the petitioner which is under challenge in this petition. As per the grounds of detention, one offence has been registered against the petitioner under section 398, 399, 400 of the Indian Penal Code and section 135(1) of the Bombay Police Act and section 25(1)(A) of the Arms Act. The petitioner, at the time of passing of the impugned order of detention, was in police custody by way of remand. Statements of the secret witnesses recorded by the concerned PI on 16th October, 2000 were verified by the detaining authority on 19th October, 2000. In this petition, the State Government has filed the affidavit in reply but no reply has been filed by the detaining authority.

(2.) Learned advocate Mr. Tirmizi appearing for the petitioner has raised various contentions but according to him, two contentions are enough for setting aside the impugned order of detention. The first contention raised by Mr. Tirmizi is to the effect that the petitioner was in police custody by way of remand at the time when the impugned order was passed and there was no bail application filed by the petitioner before any competent court. Therefore, without any cogent material on record, the impugned order of detention has been passed against the detenu. Said contention has been raised in Ground (i) page - 7 of the memo of petition. The second contention raised by Mr. Tirmizi is to the effect that looking to the date of offence registered against the petitioner which is 12th October, 2000 and the impugned order of detention has been passed by the detaining authority on 25th November, 2000 and, therefore, there was delay in passing the impugned order of detention and this delay in passing the order of detention has vitiated the detention. According to him, such delay has not been explained by the detaining authority by filing necessary affidavit on record. In support of this contention, he has placed reliance on the decision of this court reported in 1997 (1) GLH 381. He has also relied upon two other decisions of the apex court reported in 1985 (4) SCC 232 and 2000(1) SCC 341.

(3.) Learned AGP Mr. Jani has submitted that initially, the petitioner was detained as per the order of detention dated 20.10.2000 wherein the grounds were communicated and supplied to the petitioner in Gujarati language and the petitioner being Madrasi, he was not aware of Gujarati language and, therefore, documents were required to be translated and, therefore, said order was revoked and subsequent order dated 25.11.2000 was passed for detaining the petitioner while revoking the earlier order on the said technical ground and, therefore, for the aforesaid reason, there was delay. Learned AGP Mr. Jani has supported the impugned order of detention and has submitted that there is no bar in passing the order of detention of a person while in police custody. He has also submitted that the detailed affidavit in reply has been filed by the State Government explaining the situation and, therefore, according to Mr. Jani, the impugned order of detention has rightly been passed by the detaining authority and, therefore, this Court should not interfere with the same and therefore, this petition is required to be dismissed.