1. The instant petition is filed challenging the impugned detention order dated 9.1.2012 passed by the respondent no.1 (District Magistrate Jamnagar).
2. Brief facts leading to this petition are that on 9.1.2012, the respondent no.1 (District Magistrate) passed detention order under the relevant provisions of Gujarat Prevention of Antisocial Activities Act, 1985 (hereinafter referred to as 'Act') on the ground that two offences were registered against the applicant- detenue arising under Section 379 of the Indian Penal Code as well as under Section 4(1), 4(2) and other relevant provisions of the Gujarat Minerals (Prevention of Illegal Mining and Storage) Rules, 2005 and under Mines and Mineral Act. The said order came to be executed on the same date. The petitioner was supplied with the grounds of the detention and material, upon which the detention order came to be passed.
3. Mr.
Premal S. Rachchh, learned advocate for the petitioner, at the out set, submitted that there is gross delay in passing the detention order in the sense that according to him, out of two offences, the FIR in connection with first offence, came to be registered on 18.01.2010 and the FIR regarding the second offence, came to be registered on 2.7.2010. In both these matters, charge-sheet came to be filed. It is submitted that the FIR in connection with alleged second offence, latter point of time i.e. 2.7.2010 and counting from said date, the date of detention order came to be passed on 9.1.2012 i.e. after about one year and six month.
3.1 My attention was drawn to definition of Property Grabber under Section-2(h) of the Act and it is submitted that considering the detention order and the definition of property grabber, the applicant can not be branded as property grabber.
3.2 Mr.
Rachh contended that in the instant matter, there is sheer non application of mind by the detention authority in the sense that in the first offence in the charge sheet, there is no reference of any offence under the Indian Penal Code much less the offence punishable under Section 379 of the IPC.
3.3 Mr.
Rachh, learned advocate of the applicant, relied upon certain decisions which shall be discussed at relevant time.
4. Per contra, Ms. Shruti Pathak, learned AGP for the respondent-state opposes this petition and submitted that considering the detention order as a whole, it can safely be said that the act committed by the applicant amounts to property grabbing and squarely falls within the purview of the definition contained under Section-2(h). As observed by the detention authority in the detention order, the applicant took possession of the government land and excavated the land and committed theft of valuable Mines and Minerals and hence, it is submitted that the application may be dismissed.
5. I have taken into consideration the submissions advanced on behalf of both the sides. I have also taken into consideration the detention order passed by the competent authority and the relevant papers annexed with this petition.
6. A bare perusal of the detention order would suggest that two criminal cases came to be filed against the applicant regarding excavation of Mines from the Government land. Pursuant to two FIRs lodged against the petitioner and other co-accused persons, two charge-sheets came to be filed. It is pertinent to note that the first FIR was filed on 18.01.2010 and the second FIR was filed on 2.7.2010. The detention order came to be passed on 9.1.2012 i.e. almost delayed by about one year and six months. In this respect, Mr. Rachh relied upon the case of Elesh Nandubhai Patel v/s Commissioner of Police, Ahmedabad City and others reported in 1997(1) GLH Page - 381. In that case, it was held that unexplained delay in passing the order of detention, vitiates the order. In above view of the matter, the submission advanced by Mr. Rachch, learned advocate for the petitioner, that the detention order passed by the competent authority suffers from unexplained delay, has substance.
7. On behalf of the petitioner, it has further been submitted that while passing the detention order, there is sheer non-application of mind on the part of the competent authority and in that connection, if the detention order is considered, it is stated that qua both the offences, there are charges of the offences punishable under Section 379 of the IPC. Considering the copies of two charge-sheets, it is true that in one charge-sheet there is reference of said offence, but in second charge-sheet, there is no reference of the offence of theft made punishable under section 379 of the IPC.
8. In the instant matter, the petitioner is branded as "Land Grabber", as defined under Section 2 (h) of the Act. As per the definition, to brand any person as "property grabber", either he should have illegally taken possession of any lands not belonging to him, but belonging to government, local authority or any other person or enters into or creates illegal tenancies or live & license agreements or any other agreements in respect of such lands or who constructs unauthorised structures thereon for sale or hire or gives such lands to any person on rental to collect rent, compensation or other charges of such land. It has been submitted on behalf of the applicant that in the instant case the applicant has not done any act as defined under Section 2(h) of the Act. There is substance in such submission. In the instant matter, though in the detention order, it is stated that the applicant illegally trespassed into the Government land, it is pertinent to note that in none of the charge-sheets, there is reference of offence of criminal trespass. However, even if for the sake of argument, it is believed that the act committed by the applicant falls within the purview of the definition of "Property Grabber", yet in view of the above discussion, when even the impugned order of detention passed by the competent authority is grossly delayed and no cogent and sufficient explanation emerges for such delay and when it suffers from non-application of mind, this Court is of the opinion that the petition deserves to be allowed.
9. For the foregoing reasons, the petition is allowed and the impugned order of detention dated 9.1.2012 passed by the respondent no.1, is hereby quashed and set aside. The applicant detenue - Shri Sajanbhai Rambhai Buchad is ordered to be set at liberty forthwith, if not required in connection with any other matter.
10. Rule is made absolute accordingly.
11. Direct service is permitted.
(J.C.Upadhyaya, J.) cmj/ Top