Special Civil Application No. 1954 of 2014. Case: Prakash Vs Commissioner of Police. High Court of Gujarat (India)

Case NumberSpecial Civil Application No. 1954 of 2014
CounselFor Appellant: Chetan B. Raval, Advocate and For Respondents: Amita Shah, AGP
JudgesS. G. Shah, J.
IssueArms Act, 1959 - Sections 2(c), 25(1)(b), 3; Code of Criminal Procedure, 1973 (CrPC) - Section 437(5); Constitution of India - Articles 14, 22(5)(6)
Judgement DateAugust 04, 2014
CourtHigh Court of Gujarat (India)

Judgment:

S. G. Shah, J.

1. The petitioner has challenged his order of detention dated 21/1/2014 being PCB/DTN/PASA/57/2014, which is produced at Annexure-A.

2. Heard Ld. Advocate for the petitioner and Ld. AGP for the respondents.

2.1. It is further submitted that since there was no contemporary material with the detaining authority to indicate that the public order is disturbed in any manner and, therefore, detaining authority has erred in passing the order of detention.

2.2. It is further submitted that there is no material to indicate as to whether the incident alleged in the order of detention had actually occurred or not.

2.3. It is further submitted that based upon the material available with the detaining authority, it cannot be said that there is subjective satisfaction of the detaining authority so as to pass impugned order of detention.

2.4. It is further submitted that till offence is registered against the petitioner is under investigation, no such order can be passed by surpassing the provisions of the Gujarat Police Act.

2.5. It is further submitted that when the petitioner is released on bail by the competent Court for the alleged offence, if at all detaining authority is of the opinion that the petitioner should not be released, they should have preferred an application for cancellation of bail under section 437[5] of the Criminal Procedure Code. But order of detention is unwarranted since it results into drastic order of detaining the petitioner without trial and without provision of bail once detained.

2.6. It is further submitted that the order of detention is passed without application of mind and that the petitioner has been falsely implicated in all criminal cases, which are registered against him and considered for detention.

2.7. It is further submitted that there is no material to indicate the involvement of the petitioner and that he is falsely implicated on the basis of suspicion. It is further submitted that the statement of anonymous witnesses cannot be relied upon and it creates suspicion that how the detaining authority has subjectively satisfied that the petitioner is dangerous person and harmful to the society at large when there is no such material and evidence available before the detaining authority.

2.8. It is further submitted that there is delay of 36 days in issuance of impugned order after last FIR and there is no explanation for such delay since there is no material on record and, therefore, when the petitioner can be dealt with under ordinary law, there is no question to detain the petitioner.

2.9. It is also submitted that all relevant material was not placed before the detaining authority and if the same is not supplied to the petitioner, the petitioner cannot submit his representation and that order of detention is stereotyped and without considering the facts and circumstances.

2.10. It is also submitted that the papers supplied with the detention order are not sufficient, proper and in violation of Article 22[5] of the Constitution of India and that the grounds of detention are vague, ambiguous and non-existence as well as misconceived and, therefore, it is prayed that the order of detention is illegal, null and void and requires to be quashed and set aside.

3. The sum and substance of the petition is that the petitioner has been detained by such impugned order passed under the provisions of the Gujarat Prevention of Anti Social Activities Act [hereinafter referred to as 'the Act'], considering three different FIRs registered against him, details of which are disclosed in the order of detention, which confirm that in the second FIR it is alleged that the petitioner has fired with Deshi Tamancha and during investigation, though there is allegation of using fire arms, if we peruse the relevant papers of investigation, which are provided to the detenu in compilation with the order of the detention, it becomes clear that practically there was scuffle between two groups and in fact fire arms were used not by the petitioner, but from the side of the complainant. Such fact can be confirmed from the statement of Sushil alias Pappubhai Sabhajit Dube, which specifically confirms that elder son of Narayansing, namely, Arun has fired four rounds in air from the first floor of his house, wherein present petitioner is practically injured. Unfortunately, even after such specific discloser by one of the witnesses, the charges under the Arms Act are levelled against the present petitioner. However, so far as FIR being DCB Police Station C.R. No. II-3075/2010 is concerned, the detenu was found with two country made pistols and six live cartridges; whereas in third incident i.e. DCB Police Station C.R. No. II - 3056/2013 is concerned, again one country made pistol and one live cartridge were found. Therefore, the petitioner has been involved at-least in two cases where unauthorized three country made pistols were found with in-all seven cartridges and at-least in one case, he was involved in scuffle in a group where there was use of fire arms. Therefore, unless evidence is recorded and unless it is proved that fire arms were not used by the petitioner or fire arms were not found from his custody, it cannot...

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