Allowed

Aslam @ Bodio Haiderminya Shaikh v. Commissioner of Police Vadodara

Gujarat HC8 Aug 2005SCA/11049/2005

Case brief

AI extract

What is this about?

The High Court of Gujarat examined a challenge to a detention order passed under the Gujarat Prevention Anti-Social Activities Act, 1985. The court held that the unexplained delay in passing the order quashed the detention.

What did the court decide?

The detention order dated 01.04.2005 is quashed and set aside. The detenu is ordered to be set at liberty forthwith.

Aslam @ Bodio Haiderminya Shaikh Vs… — Pension and Retirement Benefits | Gujarat HC (2005)

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JUDGMENT

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SCA/11049/20051/5

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION No. 11049 of 2005

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For Approval and Signature:

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HON'BLE MR.JUSTICE SHARAD D.DAVE

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge} ?

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==============================================================

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ASLAM @ BODIO HAIDERMINYA SHAIKH - Petitioner(s)

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Versus

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COMMISSIONER OF POLICE VADODARA & 2 - Respondent(s)

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==============================================================

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Appearance :

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MR BC DAVEfor Petitioner No(s).: 1.
RULE SERVEDfor Respondent No(s).: 1,2.
Mr.P.D.Bhate, AGP for Respondent No(s).: 3.

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==================================================================

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CORAM :HON'BLE MR.JUSTICE SHARAD D.DAVE

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Date : 08/08/2005

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ORAL JUDGMENT

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1.By filing this petition, the petitioner detenu
has challenged the detention order dated
01.04.2005 passed by the Police Commissioner,

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SCA/11049/2005

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JUDGMENT

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2/5

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Vadodara City in exercise of the powers
conferred upon him under sub-section(2) of
Section 3 of the Gujarat Prevention Anti-Social
Activities Act, 1985 (“the Act” for short), as,
the “dangerous person” and is required to be
detained under the preventive detention, so
that, he may not continue with such type of
illegal activities.

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2.Along with the detention order, the detenu was
also served with the grounds of detention of the
same date. In the said grounds, there is a
reference to three criminal cases which are
filed under the Indian Penal Code. In the
grounds of detention, the statements of certain
witnesses have been recorded.

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3.Learned advocate appearing on behalf of the
petitioner detenu has submitted that there is
delay in passing the detention order against the
petitioner. The last offence was registered
against the petitioner on 07.02.2005 and the
detention order came to be passed on 01.04.2005.
Learned advocate appearing for the petitioner
has relied upon the decision of this court in
the case of Elesh Nandubhai Patel V/s
Commissioner of Police, 1997(1) GLH 381, wherein
this Court has observed in paragraph 21 as under
:

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“ In the instant case, the last registered case is of May 20, 1996. The petitioner detenue was granted anticipatory bail by the

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SCA/11049/2005

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3/5

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JUDGMENT

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competent Court. He was also granted regular
bail subsequently. The impugned order of
detention has been passed on November 05,
1996 i.e., after a delay of 5 months and 15
days. It is of course true that the
detaining authority relied on two incidents
of 2nd October and 10th October, 1996, both
unregistered cases. I have gone through the
allegations. I fail to understand if the
allegations are really of such a grievous
nature, why the cases have not been
registered against the petitioner. There
appears to be some substance in the
contention of the petitioner that these two
unregistered cases have been referred only
with a view to cover up the gap or to give
life to a stale case. This unexplained delay

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makes a ground of detention not proximate,
vitiating the order of detention itself. If
I am to buttress my findings, I would say
the reference may be made to the decision of
the Supreme Court in Anand Prakash V/s State
of U.P., reported in AIR 1990 SC 516 and
Pradeep Nilkanth V/s S.Ramamurthy reported
in 1993(2) Suppli SCC 61.

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It is, therefore, submitted that the subjective
satisfaction of the detaining authority is
vitiated on the ground of delay in passing the
detention order after the last incident and,
therefore, the impugned detention order is
required to be quashed and set aside.

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SCA/11049/2005

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4/5

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JUDGMENT

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4.On the other hand, Mr.Bhate, learned AGP has tried to support the impugned detention order against the petitioner. Affidavit-in-reply is filed on behalf of respondent no.2.

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5.The impugned order came to be challenged by the
petitioner detenu on various grounds. One of the
grounds is the delay in passing the detention
order. The last criminal case was registered
with Navapura Police Station being I CR No.18 of
2005 against the petitioner on 07.02.2005 under
the Indian Penal Code, and, therefore, delay in
passing the detention order may reflect non-
application of mind in arriving at the
subjective satisfaction by the detaining
authority. It is true that the delay by itself
in passing the detention order not fatal to the
detention of the person and has to be looked
into from the facts of each case. The facts of
this case are squarely covered by the decision
of this Court in the matter of Elesh Nandubhai
Patel V/s Commissioner of Police, reported in
1997(1) GLH 381, the detention order, therefore,
cannot be sustained and deserves to be quashed
on this ground alone.

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6.In view of what is stated above, the petition is allowed. The order of detention dated 01.04.2005 is quashed and set aside. The detenu Aslam @ Bodio Haidermiya Shaikh is ordered to be set at liberty forthwith if he is not required in connection with any other case. Rule is made

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SCA/11049/20055/5JUDGMENT
absolute accordingly. Direct service is
permitted.

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( SHARAD D DAVE, J )

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srilatha

Aslam @ Bodio Haiderminya Shaikh v. Commissioner of Police Vadodara

Case brief

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Aslam @ Bodio Haiderminya Shaikh v. Commissioner of Police Vadodara

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