Aniruddh Indrajitsinh Parmar S/O ... vs District Magistrate Dadra And ...
2021 Latest Caselaw 13326 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                         WRIT PETITION NO. 534 OF 2021

Aniruddh Indrajitsinh Parmar,
Aged : 23 years, Occ : Student, Son of
Indrajitsinh B. Parmar (detenu),
Adult, R/o. Row House No.8,
Park City, Silvassa
Dadra and Nagar Haveli
At present Sub Jail Silvassa
through Aniruddh Parmar                ...Petitioner
            vs.
1. District Magistrate, Dadra and
Nagar Haveli, Silvassa
And Daman & Diu.
2. Union Territory of Dadra and
Nagar Haveli, Daman & Diu
Silvassa
3. The Superintendent
Sub-Jail Dadra and Nagar Haveli,
Daman & Diu, Silvassa
4. The State of Maharashtra            ...Respondents
                                 ***
Mr.Manoj Mohite, Senior Advocate a/w. Mr. Dadhichi
Mhaispurkar, Mr. Rushikesh Kale and Mr. Jay S. Patil i/b Mr.
Viresh V. Purwant for petitioner.
Mr.H.S.Venegavkar for respondent Nos.1 to 3.
Mr.V.B. Kondedeshmukh, APP for respondent No.4-State.
                                 ***
            CORAM : S.S. SHINDE & N.J. JAMADAR, JJ.
            Reserved for Judgment on : 1st September 2021.
            Judgment Pronounced on : 17th September 2021.

                          ******
JUDGMENT (PER N.J. JAMADAR, J.) :

1. Rule. Rule made returnable forthwith and, with the consent

of the learned counsels for the parties, heard fnally.

Shraddha Talekar, PS                                                            1/21




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2. The petitioner, who is the son of Indrajitsinh B. Parmar

(hereinafter referred to as 'the detenu'), has preferred this petition

assailing the legality and validity of the detention order passed by

the respondent No.1-District Magistrate, Dadra and Nagar Haveli,

on 29th January 2021, in exercise of the powers conferred on him

under section 3(2) of the Gujarat Prevention of Anti-social

Activities Act, 1985 ('the Act, 1985') as extended to the Union

Territory of Dadra and Nagar Haveli.

3. Shorn of superfuities, the background facts leading to this

petition can be stated as under :-

(a) The detenu runs Hotel Malhar Bar and

Restaurant at Silvassa. On 13th January 2021,

pursuant to an information, raid was conducted by

at Hotel Malhar. It transpired that large quantity of

Indian made foreign liquor (IMFL/Beer) was

unloaded from a tempo of Eicher make bearing

registration No. DN-09-C-9639 and stored in a

room at the said hotel. Upon further investigation, it

was revealed that 3743 litres liquor was sold in the

said hotel from 19th November 2020 to 12th January

Shraddha Talekar, PS 2/21

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2021, which was highly unlikely having regard to the

occupancy and footfall in the said Hotel. It was

further revealed that the detenu had employed Mr.

Rahul Sahani, allegedly a notorious bootleger in the

in the neighbouring State of Gujarat, as a Manager

in the said hotel with a view to carry out smuggling

of liquor on large scale. A huge stock of 12,873 bulk

litres was purchased from OIDC in a short span of

three months and smuggled out from the said hotel.

(b) After noting that seven cases were

registered against the said Rahul Sahani for the

offences punishable under Bombay Prohibition Act,

1949 and the detenu was also criminally active

since very long and few cases of rioting, land-

grabbing, forgery, hurt etc. were registered against

the detenu, the last being FIR No. 56/2020 for the

offences punishable under sections 186, 188, 269,

353, 504 of the Indian Penal Code, 1860 ('the Penal

Code') read with section 51 of Disaster Management

Act, 2005, the Detaining Authority proceeded to

record that the detenu had been indulging in

Shraddha Talekar, PS 3/21

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bootlegging on a large scale under the garb of

running the hotel. Those activities of the detenu

caused a feeling of insecurity among the general

public and were thus prejudicial to the maintenance

of public order within the meaning of section 3 of

the Act, 1985. Consequently, the Detaining

Authority ordered the detention of the detenu under

section 3 of the Act, 1985 by the impugned order.

The detenu was served with a communication dated

1st February 2021 purported to be grounds of

detention.

(c) The petitioner has invoked the writ

jurisdiction of this court for quashing the order of

detention on the premise that the detention of the

detenu is in the teeth of the constitutional guaranty

and in fagrant violation of the statutory provisions.

The Detaining Authority did not furnish the material

relied upon by the Detaining Authority and thereby

deprived the detenu of the right to make an effective

representation. There is not a shred of material to

demonstrate even remotely that the detenu indulged

Shraddha Talekar, PS 4/21

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in activities which can be said to be prejudicial to

the maintenance of public order. Invocation of

extraordinary power of preventive detention is a

gross abuse of the authority on the part of the

respondent No.1.

4. We have heard Mr.Manoj Mohite, the learned Senior Counsel

for the petitioner, and Mr. Venegavkar, the learned counsel for

respondent Nos.1 to 3. With the assistance of the learned

counsels of the parties, we have also perused the material on

record.

5. Mr. Mohite, the learned Senior Counsel for the petitioner

submitted that the singular infrmity which is manifest in the

impugned order is the absence of material to demonstrate that the

detenu is a bootleger, within the meaning of section 2(b) of the

Act, 1985. Secondly, even if the case of the Detaining Authority is

taken at par, and it is assumed that the detenu can be termed as

a "bootleger", yet, there is not a shred of material to show that

activities of the detenu were prejudicial to the maintenance of

public order in any manner. Mere allegations or for that matter,

proof of being a bootleger is not suffcient to deprive personal

Shraddha Talekar, PS 5/21

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liberty of the detenu in the absence of the material to indicate

that the acts attributed to the detenu disturbed or were likely to

disturb the public order. Thirdly, the fundamental and inviolable

right of the detenu to make, and have the representation against

the order of detention considered by the Detaining Authority and

the State Government, under Article 22(5) of the Constitution was

violated as the grounds of detention did not apprise the detenu of

his constitutional right to make such representation.

6. Mr.Venegavkar, the learned counsel for respondent Nos.1 to

3 endeavoured to support the impugned order. However, Mr.

Venegavkar fairly submitted that this Court has quashed and set

aside the detention of Rahul Sahani, the co-detenu, in Criminal

Writ Petition No. 1055 of 2021, by judgment and order dated 28 th

July 2021.

7. To start with, it may be apposite to note the material which

weighed with the Detaining Authority, as is evident from the

grounds of detention served on the detenu, in passing the

detention order :

" During the course of enquiry by the police it was found that Rahul Sahani is a notorious bootleger, he is having a criminal history of bootlegging in the neighbouring State of

Shraddha Talekar, PS 6/21

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Gujarat, wherein he is involved in 7 cases of prohibition.......

It is evident that Rahul Sahani is a known bootleger of the area appointed as the Manager of Hotel Malhar owned by you, with an intention to carry out smuggling of liquor on large scale. The scale of this illegal activity can only be gauged from the fact that a huge stock of 12,873 Bulk Litres were purchased from OIDC in short span of 3 months and smuggled out.

It has also been reported by SHO Silvassa that following cases are registered against you :

     Sr.       FIR No. Section                        Disposal       Court by
     No.                                              to Court       disposal
     1         56/20       186, 188, 269, 353, 504 11/08/20 Pending
                           IPC r/w 51 of Disaster           trial
                           Management Act.
     2         Chapter case No. 18/2020 u/sec 107, 151 Cr.P.C.


                           It is evident that you have appointed a

known bootlegger of the area as a Manager of your Hotel Mahlhar to carry out smuggling of liquor on large scale. He has dubious distinction of carrying out illegal activities the one of which is evident here, is carrying out boot legging under garb of running a hotel................

In the light of the above and in order to maintain public order by controlling such antisocial and illegal activities of 'boot legging' in Dadra and Nagar Haveli you have been brought under prevailing detention. ....

Now, since you have been informed about the reasons of arrest under section 9(1) of the Act, you have a right to defend yourself and if you want to submit anything, you can inform through the Superintendent Sub-Jail D&NH,

Shraddha Talekar, PS 7/21

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within 12 days of your arrest at below mentioned address :

1] District Magistrate, Collectorate, Dadra & Nagar Haveli.

                       2] Home     Department,     Secretariat,  Moti
                       Daman.

3] PASA Advisory Board, Secretariat, Moti Daman."

8. From a bare perusal of the aforesaid grounds of detention, it

becomes abundantly clear that the substratum of the case of the

Detaining Authority is that the detenu had appointed Mr. Rahul

Sahani, allegedly a known bootleger, as the Manager of the hotel.

In addition, it is alleged that crime was registered against the

detenu at C.R. No. 56 of 2020 and a chapter proceeding was also

initiated against the detenu. On the basis of such material, the

Detaining Authority proceeded to detain the detenu in order to

maintain the public order by controlling such antisocial and

illegal activities of 'boot legging'.

9. First and foremost, it is imperative to note that the Detaining

Authority has not recorded a satisfaction to the effect that there

was material to show that the detenu was a bootleger.

10. Clause (b) of section 2 defnes "bootlegger" as under :

"(b) "bootlegger" means a person who distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor,

Shraddha Talekar, PS 8/21

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intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing."

11. Undoubtedly, the defnition of the bootleger under the Act,

1985 is of wide amplitude. However, from the perusal of the

impugned order and the grounds of detention, it unmistakably

appears that the alleged activity of bootlegging is attributed to Mr.

Rahul Sahani. The allegation against the detenu was that he had

intentionally appointed the known bootleger as the Manager of

Hotel Malhar. In the absence of material to show that the detenu

himself was indulging in bootlegging activity, the allegations that a

known bootleger was appointed as a Manager of the hotel, by

themselves, are not suffcient to designate the detenu as a

bootleger.

12. The Detaining Authority has to surmount another

impediment; a more formidable one. Under section 3(4) of the Act,

1985, a person shall be deemed to be "acting in any manner

Shraddha Talekar, PS 9/21

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prejudicial to the maintenance of public order" when such person

is engaged in or is making preparation for engaging in any

activities as a bootlegger, which affect adversely or are likely to

affect adversely the maintenance of public order. Explanation to

sub-section (4) further provides that public order shall be deemed

to have been affected adversely or shall be deemed likely to be

affected adversely inter alia if any of the activities of any person

referred to in sub-section (4) directly or indirectly, is causing or is

likely to cause any harm, danger or alarm or feeling of insecurity

among the general public or any section thereof or a grave or

widespread danger to life, property or public health.

13. From a conjoint reading of clause (b) of section 2 and sub-

section (4) of section 3 of the Act, 1985, an inference becomes

inescapable that to sustain an order of detention passed against

an alleged bootleger, the Detaining Authority should record

satisfaction not only to the effect that the detenu is a bootleger

within the meaning of section 2(b), but also that the activities of

the said bootleger affect adversely or likely to affect adversely the

maintenance of public order.

Shraddha Talekar, PS                                                         10/21




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14. The distinction between the concepts of "public order" and

"law and order" is well recognised. Public order is something more

than ordinary maintenance of law and order. A proper test to

distinguish between "law and order" and "public order" is whether

the complained acts led to disturbance of the ordinary tempo of

life of the community so as to amount a disturbance of the public

order or it merely affected an individual leaving the tranquility of

society undisturbed. It is, therefore, said that the essential

distinction between the concepts of "public order" and "law and

order" is not in the nature or quality of the act but in the degree,

potentiality and extent of its reach upon society. The given act by

itself may not be determinant of its own gravity. It is the

propensity and potentiality of the act of disturbing the even tempo

of life of the community that renders it prejudicial to the

maintenance of public order.

15. In the context of the detention under section 3 of the Act,

1985, in the case of Piyush Kantilal Mehta Vs. Commissioner of

Police, Ahmedabad City & Anr. 1, the Supreme Court expounded

the scope of sub-sections (1) and (4) thereof as under :

"12 Under sub-section (1) of section 3, an order of detention of a person can be passed with a view to 1 1989 Supp (1) SCC 322

Shraddha Talekar, PS 11/21

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preventing him from acting in any manner prejudicial to the maintenance of public order. Sub-section (4) of section 3 contains a deeming provision. Under sub- section (4), a bootlegger or a dangerous person or a drug offender shall be deemed to be acting in a manner prejudicial to the maintenance of public order when the activities of such a person affect adversely or are likely to affect adversely the maintenance of public order. In other words, although sub-section (4) contains a deeming provision, such deeming provision will not be attracted unless the activities of the person concerned affect adversely or are likely to affect adversely the maintenance of public order."

(emphasis supplied)

16. In the backdrop of the facts of the said case, wherein it was

alleged that the petitioner therein was involved in incidents of

beating innocent citizens, the Supreme Court observed in clear

and explicit terms that the fact that the petitioner is a bootleger

within the meaning of section 2(b) of the Act, 1985 would not be

suffcient to preventively detain a person under section 3 of the

Act, unless, as laid down in sub-section (4) of section 3 of the said

Act, his activities as a bootlegger affect adversely or are likely to

affect adversely the maintenance of public order. The observations

in paragraph 18 are instructive and thus extracted below :-

"18 In the instant case, the detaining authority, in our opinion, has failed to substantiate that the alleged anti- social activities of the petitioner adversely affect or are likely to affect adversely the maintenance of public order. It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such incidents, in our view, do not have any bearing on the maintenance of public order.

The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the

Shraddha Talekar, PS 12/21

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offences cannot be said to have affected the even tempo of the life of the community. It may be that the petitioner is a bootlegger within the meaning of section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of section 3 of the Act, his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order We have carefully considered the offences alleged against the petitioner in the order of detention and also the allegations made by the witnesses and, in our opinion, these offences or the allegations cannot be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of maintenance of public order. The order of detention cannot, therefore, be upheld."

17. In the backdrop of the aforesaid exposition of law, reverting

to the facts of the case, it becomes explicitly clear that in the

instant case, the satisfaction recorded by respondent No.1 is

fraught with material infrmities. The Detaining Authority has

noted that Mr. Rahul Sahani, the employee of the detenu,

indulged in bootlegging and the said act was causing a feeling of

insecurity among the general public which further endangered

maintenance of public order. Conversely, the material qua the

detenu referred in the grounds of detention is not at all germane

for passing the detention order. C.R. No. 56/2020 registered

against the detenu for the offences punishable under sections

186, 188, 269, 353 and 504 of the Indian Penal Code, 1860 ('the

Penal Code') read with section 51 of Disaster Management Act,

Shraddha Talekar, PS 13/21

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2005 apparently has its genesis in the alleged failure on the part

of the detenu to abide by the terms and conditions imposed in the

wake of Covid-19 Pandemic. The Detaining Authority has not

taken care to narrate the facts pertaining to the said crime. Nor,

particulars of Chapter Case No. 18/2020 have been divulged.

18. In the face of the aforesaid material, an inference becomes

inevitable that the text of the provisions authorising the detention

is sought to be reiterated sans any credible material and specifc

instances which could be termed prejudicial to the maintenance of

public order.

19. Indisputably, the Detaining Authority had not recorded a

satisfaction that for the fear of reprisal, the persons were not

coming forward to lodge complaints or give evidence against the

petitioner in public and, therefore, in-camera statements of

witnesses were recorded, which, in turn, lent credence to the

assessment of the authorities that the activities of the petitioner

were prejudicial to the maintenance of the public order.

20. To sum up, there was not an iota of material to demonstrate

that the activity of the petitioner had the propensity to disturb the

even tempo of life of the ordinary citizens. Nor was it a case that

Shraddha Talekar, PS 14/21

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the alleged activity caused a grave or widespread danger to life,

property or public health. The aforesaid pronouncement in the

case of Piyush Kantilal Mehta (Supra) is on all four with the facts

of the case at hand.

21. In our view, the impugned order deserves to be quashed on

the aforesaid substantive ground of absence of subjective

satisfaction that the activities of the detenu were prejudicial to the

maintenance of public order. Nonetheless, we propose to deal with

rest of the grounds of challenge to the detention order briefy.

22. The grounds of not apprising the detenu of the right to make

the representation and non-furnishing of the copies of the

documents relied upon by the Detaining Authority are facets the

right of the detenu to make and have the representation

considered by the competent authority.

23. Article 22(5) of the Constitution of India provides as under :

"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Shraddha Talekar, PS                                                                    15/21




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24. Sub-section (1) of section 9 of the Act, 1985 provides as

under :

" When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, but not latter than seven days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government."

25. The fundamental right of the detenu to have his

representation against the order of preventive detention

considered by the Detaining Authority and Appropriate

Government is supplemented by the statutory mandate that the

Detaining Authority shall offer an earliest opportunity of making a

representation against the detention order to the appropriate

government.

26. The edifce of the challenge on the count of failure to inform

the detenu of his right to make the representation, was rested on

the premise that the right to make a representation necessarily

implies that the detenu must be informed of the said right to

facilitate its effective exercise. Inviting the attention of the Court to

the grounds of detention, (extracted above in italics), it was

submitted that the detenu was not clearly apprised of his right to

make the representation.

Shraddha Talekar, PS                                                                             16/21




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27. The submission appears to be well merited. The detenu was

informed that he has a right to defend himself. The detenu was

not informed that he has a right to make a representation against

the order of detention in unequivocal terms. The reliance placed

on behalf of the petitioner on the Constitution Bench Judgment in

the case of Kamleshkumar Ishwardas Patel Vs. Union of India &

Ors. & connected matters 2 appears well founded. In the said case,

it was inter-alia observed in paragraph 38 as under :

"38 Having regard to the provisions of Article 22(5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered : Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an offcer specially empowered for that purpose either by the Central Government or the State Government the person detained has a right to make a representation to the said offcer and the said offcer is obliged to consider the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an offcer specially authorised by a State Government and to the Central Government where the detention order has been made by an offcer specially empowered by the Central Government, and to have the same duly considered. This right to make a representation necessarily implies that the person detained must be informed of his right to make a representation to the authority that has made the order of detention at the time when he is served with the grounds of detention

2 (1995) 4 SCC 51

Shraddha Talekar, PS 17/21

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so as to enable him to make such a representation and the failure to do so results in denial of the right of the person detained to make a representation."

(emphasis supplied)

28. The second limb of the submission that the right of the

detenu to make an effective representation was frustrated by not

furnishing copies of the material referred to and relied upon by

the Detaining Authority in the detention order and grounds of

detention is equally well meritted. It is pertinent to note that a

bald assertion was made in the impugned order that few cases

were registered against the detenu, without disclosing the

particulars thereof. Even, the copies of the frst information report

No.56/2020 and Chapter Case No.18/2020, referred to in the

grounds of detention, were apparently not furnished to the

detenu.

29. It is trite that failure to furnish the material, on the

strength of which the detention order is passed, vitiates the

detention order as the detenu has a constitutional right under

Article 22 of the Constitution to be furnished with copies of all the

materials relied upon or referred to in the grounds of detention.

Shraddha Talekar, PS                                                               18/21




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30. A proftable reference in this context can be made to the

judgment of the Supreme Court in the case of Tahira Haris and

Others Vs. Government of Karnataka & Others 3. In the said case,

the Supreme Court, after adverting to the previous

pronouncements, observed as under :

"29 There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone.

30 Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention. 31 On proper construction of clause (5) of Article 22 read with section 3(3) of COFEPOSA Act, it is imperative for valid continuance of detention that the detenu must be supplied all documents, statements and other materials relied upon in the grounds of detention.

32 In the instant case, admittedly, the relied upon document, the detention order of Anil Kumar was not supplied to the detenu and the detenu was prevented from making effective representation which has violated his constitutional right under clause (5) of Article 22 of the Constitution."

(emphasis supplied)

3 (2009) 11 SCC 438

Shraddha Talekar, PS 19/21

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31. The upshot of the aforesaid discussion is that the impugned

order suffers from multiple infrmities. Firstly, there is a complete

non-application of mind in arriving at the satisfaction that the

detenu is a "bootleger". Secondly, the satisfaction that the

activities of the detenu were prejudicial to the maintenance of

public order is squarely vitiated. Thirdly, there is a blatant

infraction of the constitutional and statutory provisions in not

apprising the detenu of his right to make the representation, in

clear and explicit terms, and in not furnishing the copies of the

relied upon or referred to material to the detenu. Resultantly, the

petition deserves to be allowed.

32. Hence, the following order :

ORDER

(i) The petition stands allowed.

(ii) The impugned order of detention dated 29th

January 2021 passed by respondent No.1-District

Magistrate, Dadra and Nagar Haveli, under the

provisions of section 3(2) of the Gujarat Prevention of

Anti-social Activities Act, 1985 stands quashed and

set aside.

Shraddha Talekar, PS                                                            20/21




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         (iii)    The detenu-Indrajitsinh B. Parmar be set at

liberty forthwith, if not required to be detained in any

other case.

Rule made absolute in the aforesaid terms.

    (N. J. JAMADAR, J.)                            (S. S. SHINDE, J.)




Shraddha Talekar, PS                                                            21/21