Parshottam Dahyabhai Chunara vs State of Gujarat and Others

A.P. Ravani, J.—Order of detention passed against the petitioner/detenu under the relevant provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as ''the Act'') has been challenged inter alia on the ground that the grounds of detention, on the basis of which the satisfaction is required to be arrived at by the detaining authority, were not in existence on the date when the order of detention was passed and served upon the detenu. The order of detention is dated May 13, 1987. The grounds of detention served upon the detenu are dated May 17, 1987. We have looked at the original file shown to us by the learned Counsel for the respondents. It clearly shows that the grounds have been framed on May 17, 1987.

The provisions of Article 22(5) of the Constitution of India conjoins a duty upon the detaining authority to communicate the grounds on which the order of detention has been made. This provision postulates that the grounds on which the order of detention in made should be made in existence when the order of detention is passed. On this point reference may be made to the following decisions of the Supreme Court.

(i) The State of Bombay Vs. Atma Ram Sridhar Vaidya, .

(ii) Naresh Chandra Ganguli Vs. The State of West Bengal and Others, .

In the aforesaid decisions it has been laid down by the Supreme Court that before passing order of detention, the detaining authority is required to be satisfied that it was necessary to make order of detention. The grounds of detention are required to be communicated to the detenu as soon as practicable. The grounds are conclusion of facts and this conclusion of facts must be in existence when the order of detention is made. That is the basis on which the requisite satisfaction can be arrived at and, therefore, the grounds of detention must be in existence when the order of detention is made.

In the instant case the grounds of detention have been framed subsequently, that is, four days after the order of detention is passed and executed. On this point there is no controversy. Therefore on this ground alone the order of detention is required to be quashed and set aside.

In the result, the petition is allowed.

The order of detention dated May 13, 1987 produced at Annexure ''A'' to the petition is quashed and set aside. The petitioner/detenu Parshottam Dahyabhai Chunara is ordered to be released forthwith if not required in any other case. Rule made absolute.