SALAMKHAN BACHCHEKHAN PATHAN Vs. COMMISSIONER OF POLICE BARODA

JUDGEMENT

(1.) The order of detention dated 2/04/1956 which has been passed under the relevant provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 (hereinafter referred to as the Act) by the detaining authority i.e. Commissioner of Police Ahmedabad and pursuant to which the detenu has been arrested on 29/11/1986 is challenged by the detenu on various grounds. The petitioner/ detenu has been arrested inter alia on the ground that he is a bootlegger as defined under the provisions of the Act and that his activity as bootlegger was prejudicial to the maintenance of public order and therefore with a view to preventing him from acting in that manner in future he was required to be detained. The learned Counsel for the petitioner has challenged the legality and validity of the detention order on various grounds. But in the facts and circumstances of the case it is not necessary to go into detail of other grounds since the petitioner succeeds on one ground alone.

(2.) It is contended by the learned Counsel for the petitioner that when the order of detention was passed on 2/04/1986 the detaining authority did not consider the fact that the detenu was released on bail by a competent Court on 28/03/1986 In the grounds of detention it is mentioned that the detenu was involved tn a Criminal Case registered at C. R. No. 157 of 1986 of Shahar Kotada Police Station for offences under Secs. 143 147 148 149 336 427 506 (2) 185 and 188 of the Indian Penal Code read with Sec. 135 (J) of the Bombay Police Act and offence under Sec. 25(C) of the Arms Act. From the grounds of detention furnished to the detenu and which have been produced on record it appears that the detaining authority took into consideration that the detenu was in custody. In fact a statement showing that the detenu was arrested on 26/03/1986 with regard to the aforesaid offences has been furnished to him. But the detaining authority has not taken into consideration the fact that the detenu though involved in non-bailable offence was released on bail by a competent Court on 28/03/1986 It appears from the grounds of detention furnished to the detenu that the detaining authority was not alive to this aspect. As a proposition of law it can never be said that a person who is detained for an offence under the ordinary law of land cannot be detained under the relevant provisions of laws relating to preventive detention. As laid down by the Supreme Court in the case of Alijan Mian v. District Magistrate Dhanbad reported in AIR 1983 SC 1130 a person can be detained under the relevant provisions of Preventive Detention Law even when he is in Jail custody pending Criminal Case on the date of passing of the order of detention. All that is necessary for the detaining authority is that he should be satisfied that if the detenu was enlarged on bail of which there may be every likelihood it was necessary to prevent him from acting in a manner prejudicial to the public order. The aforesaid decision of the Supreme Court indicates that the detaining authority should be alive to this aspect of the case. However in the instant case from the grounds of detention it appears that the detaining authority was not at all aware about the release of the detenu on bail by a competent Court. In such a situation the decision of the Supreme Court in the case of Anant Sakharam Raut v. State of Maharashtra and Anr. reported in AIR 1987 SC 137 would apply. Therein there was no mention in the ground of detention about the fact that the detenu was an under trial prisoner and he was arrested in connection with certain cases and that he was released on bail in all the cases pending against him. This fact was considered by the Supreme Court as indication of clear non application of mind on the part of the detaining authority while passing the order of detention. Similar is the situation in this case also. Going through the order of detention and the grounds furnished to the detenu it appears that there is no mention about the fact that the detenu had already been released by a competent Court in connection with the Criminal Case registered at C.R. No. 157 of 1986 of Shahar Kotada Police Station. In view of this position it has got to be held that the satisfaction arrived at by the detaining-authority is vitiated on account of non-application of mind to this most relevant aspect.

(3.) In the result the petition is allowed. The order of detention dated 2/04/1986 produced at Annexure A to the petition is quashed and set aside. The petitioner/detenu-Salamkhan Bachchekhan Pathan is ordered to be released forthwith if not required in any other case. Rule made absolute. Rule made absolute.