MAHBOOB IBRAHIM PATEL Vs. B K JHA

JUDGEMENT

(1.) The petitioner has filed the present Special Criminal Application for quashing the order of detention passed against the petitioner's brother-in-law and for issuing appropriate writ, order or direction declaring the continued detention of the detenu bad. The brother-in-law of the present petitioner is detained by the order dated 29th September 1985 by the Commissioner of Police, Ahmedabad City under the provisions of the Gujarat Prevention of Anti-social Activities Act, 1985 (16 of 1985). The grounds for the detention have been furnished to the detenu on the same day i.e. on 29th September 1985. Inter alia it is alleged in the grounds that the detenu has committed offences punishable under Sections 365, 326, 323, 504 and 114 IPC and offence under Sec.135 (1) of the Bombay Police Act, which is registered as C.R. No. 186/84 of Gaekwad Haveli Police Station which is pending in the Court. It is also alleged that he has also committed offences under Secs.324, 504 and 114 of IPC and also offence under Sec.135 (1) of the Bombay Police Act which is registered as C.R. No. 302/84 of the Gaekwad Haveli Police Station which is also pending in the Court. It is also alleged that he has also committed offences under Sections 145, 148, 149, 436, 324 and 153-A of the I.P.C. which is also registered as C.R. No. 79/85 of the Gaekwad Haveli Police Station which is now pending in the Court. On these allegations it is alleged that the detenu was known as a "dangerous person". It is also alleged that on account of the aforesaid activities there is an atmosphere of terror among the residents of the locality where the detenu was residing, and that the said illegal activities of the detenu are going on and, therefore, it has become an obstruction for the maintenance of public order. It is also alleged that though legal actions were taken against the detenu, he was continuing such illegal activities and thereafter, the police Commissioner has recorded his satisfaction of detaining the present detenu as it was necessary so to do.

(2.) Mr. B.J. Shethna, the learned Advocate appearing for the petitioner has inter alia raised the following grounds for challenging the validity of the detention order : (1) That the offences alleged to have been committed by the detenu are of the years 1984 and 1985 i.e. only for the period of two years, while the necessary ingredient for treating any person as "dangerous person" as required under Section 2(c) of the Act is that the person habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959, during the period of three successive years. Therefore, as necessary ingredient of commission of offences in three successive years has not been alleged, the detenu cannot be treated as a "dangerous person" for the purposes of this Act. (2) That under Section 3(3) of the Act the detaining authority is bound to forthwith report the fact of passing of the detention order along with the grounds on which the order has been passed and also such other particulars which in his opinion have a bearing on the matter, to the State Government. While in the present case, the detaining authority has not explained as to why the said order was not communicated to the State Government forthwith and hence, the order of detention is vitiated.

(3.) Mr. Shethna, the learned Advocate appearing for the petitioner has submitted that so far as the detenu is concerned, the very condition precedent for treating him as a "dangerous person" has not been complied with inasmuch as the offences alleged to have been committed by him, as mentioned in the grounds are only for the years 1984-85 and not for successive three years and, therefore, he cannot be treated as a "dangerous person" under Sec.2(c) of the Act.