GOPALBHAI CHATURBHAI AMIN Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) By filing this petition, the petitioner detenu has challenged the detention order dated 28.12.2004 passed by the District Magistrate, Gandhinagar in exercise of the powers conferred upon her under sub-section(1) of Section 3 of the Gujarat Prevention Anti-Social Activities Act, 1985 (the Act for short), as, the dangerous person and property grabber" and is required to be detained under the preventive detention, so that, he may not continue with such type of illegal activities.

(2.) Along with the detention order, the detenu was also served with the grounds of detention of the same date. In the said grounds, there is a reference to four criminal cases which are filed under the Indian Penal Code. In the grounds of detention, the statements of certain witnesses have been recorded.

(3.) Learned advocate appearing on behalf of the petitioner detenu has raised manifold contentions. It is mainly submitted that when the detention order dated 28.12.2004 came to be passed, the petitioner was in judicial custody in connection with all four offences registered against him under the Indian Penal Code and the petitioner did not prefer any bail application before the competent court at the time of passing the order of detention and, therefore, at the time of passing the order of detention, the detaining authority had no cogent and credible material before him to show that the petitioner would prefer bail application before the competent court in all the cases and he would be released on bail by the competent court and, therefore, the conclusion arrived at by the detaining authority is based only on presumption. In support of his contention, he has relied upon the decision reported in AIR 2000 SC 3675 and submitted that the satisfaction arrived at by the detaining authority on such presumption makes the order bad and illegal and, therefore, the impugned order of detention requires to be quashed and set aside. It is submitted that the detaining authority has verified the statements of witnesses mechanically and without application of mind and, therefore, in view of the principles and guidelines laid down by the Division Bench of this Court in the case of Bai Amina V/s State of Gujarat, reported in 22 GLR 1186, the privilege claimed under Section 9(2) of the Act is not genuine and, therefore, it reflects total non-application of mind on the part of the detaining authority and the subjective satisfaction arrived at by the detaining authority gets vitiated. He further submitted that the subjective satisfaction arrived at by the detaining authority to the effect that the petitioner detenu is a "dangerous person" within the meaning of Section 2(c) of the Act and that the petitioner is a "property grabber" within the meaning of Section 2(h) of the Act gets vitiated as the detaining authority has also referred to and relied upon the statements of five witnesses wherein it is observed by the detaining authority that it is quite clear that some farmers have deposed before the proposing authority but in absence of proper verification made by the detaining authority, the subjective satisfaction arrived at by the detaining authority gets vitiated. He, therefore, submitted that activities of the petitioner detenu alleged in the registered offences cannot be said to be prejudicial to the maintenance of law. He further submitted that if the first offence registered against the petitioner is taken into consideration, then there is a delay of more than four months and if the last offence is taken into consideration, then the petitioner was in judicial custody and, therefore, there is no explanation in the grounds of detention as to why the impugned order of detention was passed on 28.12.2004 and in absence of any explanation, there is a delay of round about four months in passing the impugned order of detention and thus, live link between the prejudicial activities and passing the order of detention is being snapped and, therefore, the impugned order is bad in law which requires to be quashed and set aside.