Anjaliben vs Commissioner of Police and Others

M.D. Shah, J.—Heard Mr Chetan Rawal, learned advocate for the petitioner and Mr Vinay Pandya, learned AGP for the respondents.

The present petitioner is arrested in connection with CR No. II.3027 of 2008 registered with Isanpur police station on 16.2.2008. On the basis of the said offence, Police Commissioner, Ahmedabad City passed order of detention against the present petitioner dated 28.2.2008. The petitioner was in jail since 16.2.2008 to 2.4.2008. On 2.4.2008, she was released on bail by the trial court and on the same day, after releasing her on bail, the order of detention was executed. Though it was within the knowledge of the concerned authority and the police that she was arrested in connection with the above mentioned case, on 16.2.2008, detention order was not executed in jail during the custody. Therefore, in the opinion of this Court, the date of detention should be considered as 16.2.2008 and that is the actual date of detention.

By way of this petition, the detenu has challenged the order of detention dated 28.2.2008 passed by Commissioner of Police, Ahmedabad City under the provisions of Sub-section (1) of Section 3 of the Gujarat Prevention of Anti-social Activities Act, 1985 (hereinafter referred to as the ''PASA Act''). The detenu was branded as "immoral traffic offender".

From the grounds of detention, it appears that one offence being CR. No. II-3027 of 2008 was registered under Sections 3, 5 and 7 of Immoral Traffic in Women & Girls Act, 1956 against the detenu with Isanpur police station, Ahmedabad City Except the aforesaid solitary offence, no other offence has been registered against the detenu which pertains to ''immoral trafficking''.

Learned Advocate has stated that on the basis of aforesaid single offence, the detaining Authority came to the conclusion that the detenu was immoral traffic offender within the meaning of Section 3(1) of the P.A.S.A. Act. It was also stated in the impugned order that as the said activities of the detenu are dangerous and affecting maintenance of ''public order'', order of detention has been passed against the detenu. It is also stated by him that the detenu is in jail since 16.2.2008.

In support of his case, learned Advocate has placed reliance on a decision of this Court in the case of Firozkhan Jitsing Rathod v. Commissioner of Police passed in Special C.A. No. 10966 of 2007 dated 19.10.2007 wherein the court (Hon''ble Mr Justice D.H. Waghela) relying upon a decision in a matter of similar offence and nature in Special Civil Application No. 10963 of 1007 (Hon''ble Mr Justice Akil Kureshi), allowed the petition and the detenu was set at liberty forthwith. Learned Advocate for the detenu has has also relied upon a decision in the case of Vahidbhai Saiyadbhai Sheikh v. State of Gujarat and Ors. reported in 2003(3) GLH 697 wherein at Para-9 it has been held as under:

Strikingly, in this case, the authority did not choose even to file prosecution and the question of detenu being released on bail could be considered when prosecution is filed and some material is placed before the detaining authority that the detenu was likely to be released on bail. The detaining authority, in this case, instead has chosen to rely upon an incident and from the said incident, the detaining authority reached to subjective satisfaction that the detenu was likely to continue his activities in future when there was no material at all on record revealing such repeating tendency on the part of the detenu. The order of detention, therefore, is vitiated by vice of non-application of mind.

Heard learned Counsel for the parties and perused the documents placed on record. I have also considered factual and legal aspects emerging from the record of the petition and the rival submissions. In the case on hand, the only material is one offence registered against the detenu which pertains to ''immoral trafficking''. Registration of a solitary offence is not sufficient material to infer a certain habit of the detenu and that on the basis of solitary registered offence it would be far fetching to draw inference that the detenu was likely to commit such crimes again and again. I am, therefore, of the view that the detaining Authority has passed the order of detention without there being any credible or cogent material on record in this behalf. Even, taking into consideration, facts and circumstances of the case and allegations made against the detenu it can be, at the most, said that there is disturbance of only ''law and order'' and not ''public order''.

Hence, in view of the above discussion as well as the decisions of this Court as aforesaid, this Court is of the opinion that the order of detention deserves to be quashed and set aside.

In the result, this petition is allowed. The order of detention dated 28.2.2008 passed by Commissioner of Police, Ahmedabad city is hereby quashed and set aside. The detenu is, therefore, ordered to be set at liberty forthwith, if she is not required in connection with any other case by the Authority. Rule is made absolute. Direct service is permitted.