1. By means of filing this petition, the petitioner has challenged the order of detention dated 17.2.2011 passed by the Police Commissioner, Ahmedabad City who has been declared as a dangerous person.
2. It is a settled principle of law that in order to bring a person within the expression "dangerous person" as defined in clause
(c) of section 2 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short 'the Act of 1985'), there should be positive materials to indicate that such person is habitual of committing or attempting to commit or abetting the commission of offences which are punishable under Chapter XVI or XVII of Chapter V of the Arms Act and that single or isolated act falling under the said Chapters cannot be characterized as a habitual acts as envisaged in section 2(c) of the PASA Act. Further, besides a person being a dangerous person, his activities should also fall within the ambit of expression 'public order'. A distinction has to be drawn between the 'law and order' and 'maintenance of public order'. A reference may be made of M. J. Shaikh v. M.M. Mehta, Commissioner of Police & Ors., reported in 1995 (2) GLR 1268.
3. I have heard learned advocate for the petitioner at length and also perused the material on record. But learned advocate for the petitioner has restricted his argument on the point that there is solitary offence registered against him wherein the detenue has already been released on bail and more particularly the representation has been made by the petitioner on 10-05-2011 and same has not been decided, and, therefore, there is a delay in deciding the representation which is fatal to the order of detention. Learned Addl. Government Pleader has fairly admitted the same.
4. It has been held in a case of Urmilaben Navnitlal Gandhi Vs. The Commissioner of Police, Surat City and Ors., 1994 (2) G.L.H. (U.J.) 10 at head note (A) as under:
" (A) Preventive Detention - Gujarat Prevention of Anti-Social Activities Act, 1985- delay of five days in considering representation not properly explained- Held, detention invalid."
5. In the above unreported judgment, a representation of the detenue dated 12th October, 2993, which was received by the detaining authority on 14th October 1993 was rejected on 15th October, 1993. The said representation was forwarded to the State Government on 16th October, 1993, but the office forwarded it to the State Government on 19th/21st October, 1993. It was received by the State Government on 26th October, 1993 and rejected on 27th October, 1993. The Court, applying the ratio in Harish Pahava vs. State of Uttar Pradesh, AIR 1981 SC 1126, has observed in the above unreported judgment that the said delay of five days, i.e. from 16th October, 1993 to 21st October, 1993 in forwarding the representation was unreasonable and not properly explained vitiating the continued detention of the detenue.
6. In the instant case, it appears that though representation has been sent by the petitioner, it has not been decided till today. So, there is an apparent delay in forwarding and deciding the representation. It is to be noted that no affidavit explaining satisfactorily the said delay has been filed by the respondents. As representation of the petitioner has not been forwarded by the authority in time, the rights guaranteed under Article 22(5) of the Constitution of India are violated which make the order of detention illegal.
7. In view of the above, the petition is allowed. The order of detention dated 17-2-2011 passed against the petitioner-detenue is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute accordingly with no order as to costs.
[K.
M. THAKER, J.] Amit Top