Dhanbai Jashabhai Miyana vs Commissioner of Police and Others

G.T. Nanavati, J.

1 Petitioner Dhanbai challenges in this petition the order of detention passed against her u/s 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 by the Commissioner of Police, Ahmedabad city. The said order of detention was passed on 13-7-1988. The Commissioner of Police has passed that order of detention on being satisfied that the petitioner is a bootlegger and that with a view to preventing her from acting in any manner prejudicial to the maintenance of public order, it was necessary to do so. The petitioner was served with the grounds on the same day. In the grounds, details of the case in which she was involved are mentioned. It is farther alleged in the grounds that in order to carry on her illegal activity of selling illicit liquor she is creating a reign of fear and terror by attacking persons with dangerous weapons.

The order of detention is challenged on various grounds. However, it is not necessary to refer to all of them as this petition deserves to bs allowed on the ground that the detaining authority has passed the order without proper application of mind and that vital material in favour of the petitioner was not placed before him by the sponsoring authority. In the grounds, the detaining authority has referred to ten criminal cases filed against her in the year 1987. It is further stated in the grounds that the said cases were pending against her.

What is submitted by the learned Counsel for the petitioner is that five out of those ten cases were already disposed of before the detention order was passed and that shows non-application of mind on the part of the detaining authority or that the said vital material viz. the fact of acquittal and the judgments delivered in those cases was not brought to the notice of the detaining authority. This fact is not denied by the detaining authority in his affidavit-in-reply. What he has stated is that now on inquiry he has found that she was acquitted in those cases. He has also given the dates on which the petitioner came to be acquitted in those cases. From what is stated in the affidavit, we find that in two cases she was acquitted in the month of February 1988 and in other three cases in the month of May 1998. As stated earlier the order of detention was passed against her on 13-7-1988.

It is no made clear as to whether this fact was brought to his notice earlier or not. If this materials was brought to his notice then the order will have to be struck down on the ground that even though the petitioner was acquitted in those cases he has proceeded on the basis that those cases were pending, and that would show non-application of mind while considering the material. If this material was not placed before him, then the order will have to be struck down on the ground that the sponsoring authority had withheld from the detaining authority the material which was vital and favourable to the petitioner. Whether a detaining authority, inspite of that material, would have still decided to pass the detention order is not for us to consider. But it is quite possible that he might have thought it fit not to pass such an order in view of the observations made in those judgments. In either case, the order of detention will have to be set aside.

In the result, this petition is allowed. The impugned order of detention is quashed and set aside. The petitioner is ordered to be set at liberty unless her presence in jail is required in connection with some other offence. Rule is made absolute with no order as to costs.