Gujarat High Court
Rakesh Parasnath Thakur Through ... vs State Of Gujarat on 12 April, 2023
Bench: A.S. Supehia
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6176 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 6176 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
RAKESH PARASNATH THAKUR THROUGH JITENDRABHAI PARASNATH
THAKUR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MS NISHKA H PRAJAPATI(10717) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR ADITYA JADEJA, AGP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 12/04/2023
ORAL JUDGMENT
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. By way of the present petition under Article 226 of the
Constitution of India, the petitioner has challenged the Order of
Detention No.DTN/ECA/2/2023 dated 31.3.2023 passed by the
respondent No.2-District Magistrate, Surat, in exercise of
powers under Section 3 (2) of the Prevention of Black
Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980, by which he has been detained with a
view to prevent him from acting in prejudicial manner to the
maintenance of supplies of the commodities essential to the
community.
2. Learned Advocate, Mr. H.R. Prajapati for the petitioner
has mainly argued that though the order of detention is bad in
law, illegal, unconstitutional, null and void, he would submit on
the ground of non-application of mind on the part of the
Detaining Authority in recording his subjective satisfaction for
passing the detention order. He submitted that in absence of
any material which would satisfy the Authority who has passed
the impugned order, it is totally non-application of mind on the
part of the Authority. He has vehemently submitted that this is
a second round of litigation. He submitted that earlier present
petitioner had filed Special Civil Application No.25423 of 2022
at pre-detention stage, which was decided by the Division
Bench on 16.12.2022. Said Special Civil Application was
disposed of by Honourable Division Bench solely on the basis
of statement made by learned AGP before the Honourable
Court that as per the communication dated 15.12.2022
received from Sachin Police Station, neither any proposal is
received nor any detention order is passed against the
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
petitioner with regard to the FIR/s mentioned in paragraph 2 of
the petition. He also submitted that on 31.3.2023, present
detenu was detained. Mr.Prajapati also submitted that at the
time of disposing the aforesaid Special Civil Application
clarification was also made by the Division Bench stating that
the detaining authority shall not detain the petitioner under
PASA Act, on account of FIR/s as mentioned in the
communication. He has also submitted that in utter disregard
to the order passed by the Division Bench, the detaining
authority has passed the detention order and detained the
present petitioner. He also submitted that the detaining
authority has acted in high handed manner and it is in blatant
disregard of the order passed by Division Bench of this Court
and, therefore, such order is required to be quashed and set
aside, in view of the fact that the order of detention is not in
consonance with the provisions of Sub-section (4) of section 3
of the Act.
2.1 Mr.Prajapati has also submitted that it is statutory
obligation of the detaining authority to inform the Central
Government within 7 days about the passing of the detention
order together with grounds, other particulars and materials
relied upon and that too in English language. The detaining
authority has not supplied such documents. It is further
submitted that some of the documents supplied along with the
detention order are not legible and supply of such illegible
documents would amount to non-communication of the
grounds of detention and, therefore, the order of detention has
become violative of Article 22, Clause (5) of the Constitution of
India.
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
2.2 Mr. Prajapati further submitted that, in the list of
documents, statements of certain witnesses have been
referred, however, in the compilation such statements have
not been supplied to the petitioner, thus, the detaining
authority has failed in supplying relevant documents relied
upon by it while passing the order of detention and the said
action of the detaining authority would amount to non-
communication of grounds of detention.
2.3 Mr Prajapati as further submitted that the detenu has
already filed representation against the order of detention but
no action has been taken by the detaining authority on such
representation. He submitted that rights conferred upon the
detenu by Article 22, Clause (5) of the Constitution of India
have been violated, firstly by not informing the grounds on
which the order of detention has been passed, and secondly,
by not deciding the representation made by the detenu against
the order of detention. It is well settled that right to make a
representation implies that the detenu should have all the
information that will enable him to make an effective
representation. Such a right of the detenu is subject to right or
privileges given by Clause (3) of Article 22, but at the same
time refusal to supply relevant documents or supply of illegible
or blur copies of the documents relied upon by the detaining
authority is in violation of Article 22, Clause (5). He further
submitted that it is also an admitted position that the detaining
authority has placed reliance upon solitary offence against the
detenu, wherein the detenu has already been released on bail
by the competent Court. Said order is not challenged by the
competent authority before appropriate forum.
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
2.4 In support of his submissions, learned advocate,
Mr.Prajapati has relied upon the latest decision of the Supreme
Court in the case of State of Manipur v. Buyamayum Abdul
Hanan @ Anand reported in JT 2022 (10) SC 264 and another
decision in the case of Abdul Sathar Ibrahim Manik v.
Union of India reported in 1992 (1) SCC 1.
3. On the other hand, learned AGP, Mr Jadeja, has opposed
this petition and submitted that considering the grounds of
detention, it appears that the petitioner had indulged in such
activities which is prejudicial to the maintenance of supplies of
essential commodities. He, therefore, urged that the petition
deserves to be dismissed. He has candidly submitted that
earlier when the petition was preferred by the petitioner at
that point of time the concerned AGP has enquired from the
concerned police station about the intention of the authority
for initiation of proceedings of detention against the petitioner
under PASA Act. He also submitted that said complaint was
registered before Sachin GIDC Police Station and concerned
AGP had inadvertently inquired from the officer of the police
station, whereas present proceedings are initiated by the office
of the District Magistrate under the provisions of the
Prevention of Black Marketing and Maintenance & Supplies of
Essential Commodities Act, 1955. Both the agencies are
different, distinct and separate. Bare perusal of the papers
transpires that there was some communication gap between
two agencies and the office of District Magistrate was at all not
aware about the filing of matter before this Court by the
petitioner, wherein specific observations have been made by
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
this Court at the time of disposal of the petition. Therefore, it
appears that the detaining authority was not at all aware about
the earlier proceedings and the observations made by this
Court while deciding such petition and inadvertently, in
absence of knowledge of earlier order of this Court, order of
detention has been passed.
4. Heard the learned Advocates appearing for the
respective parties. We have also gone through the grounds
raised by the petitioner challenging his detention order and
also perused the detention order along with grounds for
detaining the petitioner. We find that present petitioner had
earlier filed Special Civil Application No.25423 of 2022 at pre-
detention stage, which was decided by the Division Bench on
16.12.2022, solely on the basis of statement made by learned
AGP before the Honourable Court that as per the
communication dated 15.12.2022 received from Sachin Police
Station, neither any proposal is received nor any detention
order is passed against the petitioner with regard to the FIR/s
mentioned in paragraph 2 of the petition. Inspite of this,
present detenu is detained in connection with same FIR/s. It is
also found that some of the documents supplied to the detenu
along with the detention order are not legible and supply of
such illegible documents would amount to non-communication
of the grounds of detention and, therefore, the order of
detention has become violative of Article 22, Clause (5) of the
Constitution of India. Moreover, the detenu had filed a
representation against the order of detention but no action is
taken by the detaining authority on such representation. It is
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
well settled that right to make a representation implies that
the detenu should have all the information that will enable him
to make an effective representation and supply of illegible or
blur copies of the documents relied upon by the detaining
authority is in violation of Article 22, Clause (5). Not only that
in connection with solitary offence relied upon by the detaining
authority, the detenu has already been released on bail by the
competent Court and such order is not challenged by the
competent authority before appropriate forum.
5. In the case of Sushanta Kumar Banik v. State of
Tripura, AIR 2022 S.C. 4715 before Honourable Apex Court,
the fact of the accused/detenu being released on bail for the
offences under the NDPS Act, 1985 was suppressed and
hence, the Apex Court has held that such vital fact could not
have been withheld by the sponsoring authority before the
detaining authority. In the present case, though the
detaining authority was aware of the fact that the detenu is
released on bail in all these offences, the order does not
anyway contain that the detaining authority has applied its
mind to the afore-noted facts. The Honourable Apex Court
has observed as under in aforesaid judgment:
"22. As noted above, in the case on hand, in both the cases relied
upon by the detaining authority for the purpose of preventively
detaining the appellant herein, the appellant was already ordered
to be released on bail by the concerned Special Court. Indisputably,
we do not find any reference of this fact in the proposal forwarded
by the Superintendent of Police, West Tripura District while
requesting to process the order of detention. The reason for laying
much stress on this aspect of the matter is the fact that the
appellant though arrested in connection with the offence under
the NDPS Act, 1985, the Special Court, Tripura thought fit to release
the appellant on bail despite the rigours of Section 37 of the NDPS
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
Act, 1985. Section 37 of the NDPS Act, 1985 reads thus:
"Section 37. Offences to be cognizable and non-
bailable.--(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences
under section 19 or section 24 or section 27A and also for offences
involving commercial quantity shall be released on bail or on his
own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose
the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is
not guilty of such offence and that he is not likely to commit any
offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for the time
being in force, on granting of bail."
23. A plain reading of the aforesaid provision would indicate that the
accused arrested under the NDPS Act, 1985 can be ordered to be
released on bail only if the Court is satisfied that there are
reasonable grounds for believing that the accused is not guilty of
such offence and that he is not likely to commit any offence while
on bail. If the appellant herein was ordered to be released on bail
despite the rigours of Section 37 of the NDPS Act, 1985, then the
same is suggestive that the Court concerned might not have found
any prima facie case against him. Had this fact been brought to the
notice of the detaining authority, then it would have influenced the
mind of the detaining authority one way or the other on the
question whether or not to make an order of detention. The State
never thought to even challenge the bail orders passed by the
special court releasing the appellant on bail.
24. In Asha Devi v. Additional Chief Secretary to the Government of
Gujarat and Anr., 1979 Crl LJ 203, this Court pointed out that:
"... if material or vital facts which would influence the minds
of the detaining authority one way or the other on the
question whether or not to make the detention order, are not
placed before or are not considered by the detaining authority
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
it would vitiate its subjective satisfaction rendering the
detention order illegal."
25. ...........
26. From the above decisions, it emerges that the requisite
subjective satisfaction, the formation of which is a condition
precedent to passing of a detention order will get vitiated if
material or vital facts which would have bearing on the issue and
weighed the satisfaction of the detaining authority one way or the
other and influence his mind are either withheld or suppressed by
the sponsoring authority or ignored and not considered by the
detaining authority before issuing the detention order.
27. It is clear to our mind that in the case on hand at the time when
the detaining authority passed the detention order, this vital fact,
namely, that the appellant detenu had been released on bail by the
Special Court, Tripura despite the rigours of Section 37 of the NDPS
Act, 1985, had not been brought to the notice and on the other
hand, this fact was withheld and the detaining authority was given
to understand that the trial of those criminal cases was pending ."
5.1 In the case of Vijay Narain v. State of Bihar 1984 (3)
S.C.C. 14, the Apex Court asserted that when a person is
enlarged on bail by a competent Court, great caution should
be exercised in scrutinizing the validity of an order of
preventive detention order which is based on the same
charge, which is to be tried by the criminal Court. It is also
noticed by this Court that the order does not refer to any
application for cancellation of bail having been filed by the
State authorities.
5.2 In a recent decision, in the case of Pramod Singla v.
Union of India & Others, in a Criminal Appeal arising out of
Special Leave Petition (Criminal) No.10798 of 2022, decided on
10th April 2023, Honourble Supreme Court has observed as
under:-
"26. Further, in the Jayanarayan Sukul Case (Supra), the
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
same issue was considered by another Constitution
Bench of this Court, wherein it went on to reiterate the
principles in the Pankaj Kumar Case (Supra), and held
that the central Government must act independently of
the Advisory Board, and can decide the representation
made by the detenue without hearing from the Advisory
Board. For the purpose of convenience, the relevant
paragraph of the said judgment is being reproduced
herein:
"In the present case, the State of West Bengal is
guilty of infraction of the Constitutional provisions
not only by inordinate delay of the consideration of
the representation but also by putting of the
consideration till after the receipt of the opinion of
the Advisory Board. As we have already observed
there is no explanation for this inordinate delay. The
Superintendent who made the enquiry did not affirm
an affidavit. The State has given no information as
to why this long delay occurred. The inescapable
conclusion in the present case is that the
appropriate authority failed to discharge its
Constitutional obligation by inactivity and lack of
independent judgment."
27. In the Harardhan Saha Case (Supra), yet another
Constitution Bench of this Court considered the
distinction between the consideration of the
representation made by the detenue in cases of
preventive detention, and it was stated that if the
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
representation was made before the matter is referred to
the Advisory Board, the detaining authority must
consider such representation, but if the representation is
made after the matter is referred to the Advisory Board,
the detaining authority would first consider it and then
send it to the Advisory Board. The relevant paragraph
from the said judgment is being reproduced hereunder:
"The representation of a detenu is to be considered.
There is an obligation on the State to consider the
representation. The Advisory Board has adequate
power to examine the entire material. The Board
can also call for more materials. The Board may call
the detenu at his request. The Constitution of the
Board shows that it is to consist of Judges or
persons qualified to be Judges of the High Court.
The Constitution of the Board observes the
fundamental of fair play and principles of natural
justice. It is not the requirement of principles of
natural justice that there must be an oral
hearing. Section 8 of the Act which casts an
obligation on the State to consider the
representation affords the detenu all the rights
which are guaranteed by Article 22(5). The
Government considers the representation to
ascertain essentially whether the order is in
conformity with the power under the law. The
Board, on the other hand, considers whether in the
light of the representation there is sufficient cause
for detention.
Principles of natural justice are an element in
considering the reasonableness of a restriction
where Article 19 is applicable. At the stage of
consideration of representation by the State
Government, the obligation of the State
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
Government is such as Article
22(5) implies. Section 8 of the Act is in complete
conformity with Article 22(5) because this section
follows the provisions of the Constitution. If the
representation of the detenu is received before the
matter is referred to the Advisory Board, the
detaining authority considers the representation. If
a representation is made after the matter has been
referred to the Advisory Board, the detaining
authority will consider it before it will send
representation to the Advisory Board."
6. It is true that if a person is tried separately for the
criminal offences, it would not debar the authorities from
passing a detention order under the preventive detention law.
However, when a case comes before the Court, the Court must
ask in deciding its legality is: Was the ordinary law of the land
sufficient to deal with the situation? If the answer is in the
affirmative, the detention order will be illegal. In the case of
Rekha vs. State of Tamil Nadu, as reported at 2011 (4) RCR
(Cri) 21, the Hon'ble Apex Court, while dealing with the
provisions of preventive detention with regard to dangerous
activities of bootleggers, drug offenders etc., held that
personal liberty of citizen can be protected when ordinary law
is sufficient to deal with the case. The Apex Court in paragrahs
31, 32 and 37 of the said judgment held as under:-
"31 Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the rule of law. No
such law exists in the USA and in England (except during
war time). Since, however, Article 22(3)(b) of the
Constitution of India permits preventive detention, we
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
cannot hold it illegal but we must confine the power of
preventive detention within very narrow limits, otherwise
we will be taking away the great right to liberty
guaranteed by Article 21 of the Constitution of India
which was won after long, arduous, historic struggles. It
follows, therefore, that if the ordinary law of the land
(Indian Penal Code and other penal statutes) can deal
with a situation, recourse to a preventive detention law
will be illegal.
32 Whenever an order under a preventive detention law
is challenged, one of the questions the court must ask in
deciding its legality is: Was the ordinary law of the land
sufficient to deal with the situation? If the answer is in the
affirmative, the detention order will be illegal. In the
present case, the charge against the detenue was of
selling expired drugs after changing their labels. Surely
the relevant provisions in the Indian Penal Code and the
Drugs and Cosmetics Act were sufficient to deal with his
situation. Hence, in our opinion, for this reason also, the
detention order in question was illegal.
37. No doubt it has been held in the Constitution Bench
decision in Haradhan Saha's case (supra) that even if a
person is liable to be tried in a criminal court for
commission of a criminal offence, or is actually being so
tried, that does not debar the authorities from passing a
detention order under a preventive detention law. This
observation, to be understood correctly, must, however,
be construed in the background of the constitutional
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
scheme in Articles 21 and 22 of the Constitution (which
we have already explained). Articles 22(3)(b) is only an
exception to Article 21 and it is not itself a fundamental
right. It is Article 21 which is central to the whole chapter
on fundamental rights in our Constitution. The right to
liberty means that before sending a person to prison a
trial must ordinarily be held giving him opportunity of
placing his defence through his lawyer. It follows that if a
person is liable to be tried, or is actually being tried, for a
criminal offence, but the criminal law (Indian Penal Code
or other penal statutes) will not be able to deal with the
situation, then, and only then, can the preventive
detention law be taken recourse to. 8 In the present case,
as stated here-in-above, the licence of the petitioner to
run the fair price shop was initially suspended and
subsequently cancelled. It was not possible for petitioner
detenu to run fair price shop and indulge in such
prejudicial activities, which would lead the authority to
pass the detention order under preventive detention law.
Though, it is not a question of sitting over an appeal or
appreciating the material collected by the Authority while
deciding the writ petition, but, if the detention order is
passed without having any material, which would lead to
subjective satisfaction of the authority that the detenue
shall continue his illegal activities, the court can certainly
arrive at the conclusion that the subjective satisfaction
arrived at by the Authority is vitiated. In the present case,
there is no material on record which would establish that
the Authority was right in arriving at the conclusion that
the detenu shall continue his prejudicial activities. Hence
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
in the above facts and circumstances, the petition
requires acceptance and is deserves to be allowed."
7. In the case of State of Manipur v. Buyamayum Abdul
Hanan @ Anand (supra), Supreme Court has observed as
under:-
"14. Learned counsel for the appellants has not disputed the
proposition settled by this Court that supply of legible copies
of the documents relied upon by the detaining authority is a
sine qua non for making an effective representation which is
the fundamental right of detenu guaranteed under Article
22(5) of the Constitution. The only submission made by
learned counsel for the appellants is that respondent no.1, at
no stage, raised any objection that the pages of the
documents relied upon by the detaining authority in the
grounds of detention were illegible or blurred which, in any
manner, has denied him the opportunity of making
representation and the objection was raised, for the first time,
before the High Court and not at any stage before the
detaining authority. In the given facts and circumstances,
learned counsel submits that the interference made by the
High Court in setting aside the order of detention is not legally
sustainable and deserves to be interfered with by this Court.
..........
16. Article 22(5) of the Constitution confers two rights on
the detenu, firstly, the right to be informed of the grounds on
which the order of detention has been made and, secondly, to
be afforded an earliest opportunity to make a representation
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
against the order of detention.
17. It is well settled that right to make a representation
implies that the detenu should have all the information that
will enable him to make an effective representation. No doubt,
this right is again subject to the right or privilege given by
clause (6). At the same time, refusal to supply the documents
requested by the detenu or supply of illegible or blurred copies
of the documents relied upon by the detaining authority
amounts to violation of Article 22(5) of the Constitution.
Although it is true that whether an opportunity has been
afforded to make an effective representation always depends
on the facts and circumstances of each case.
.................
21. Thus, the legal position has been settled by this Court that
the right to make representation is a fundamental right of the
detenu under Article 22(5) of the Constitution and supply of
the illegible copy of documents which has been relied upon by
the detaining authority indeed has deprived him in making an
effective representation and denial thereof will hold the order
of detention illegal and not in accordance with the procedure
contemplated under law.
...........
24. In other words, the right of personal liberty and
individual freedom which is probably the most cherished is
not, in any manner, arbitrarily to be taken away from him
even temporarily without following the procedure prescribed
by law and once the detenu was able to satisfy while assailing
the order of detention before the High Court in exercise of
jurisdiction Article 226 of the Constitution holding that the
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
grounds of detention did not satisfy the rigors of proof as a
foundational effect which has enabled him in making effective
representation in assailing the order of detention in view of
the protection provided under Article 22(5) of the Constitution,
the same renders the order of detention illegal and we find no
error being committed by the High Court in setting aside the
order of preventive detention under the impugned judgment."
8. In the case of Abdul Sathar Ibrahim Manik v. Union
of India (supra), it is observed as under:-
"12. ...................
Having regard to the various above-cited decisions on the
points often raised we find it appropriate to set down our
conclusions as under:
(1) A detention order can validly be passed even in the case
of a person who is already in custody. In such a case, it must
appear from the grounds that the authority was aware that
the detenu was already in custody.
(2) When such awareness is there then it should further
appear from the grounds that there was enough material
necessitating the detention of the person in custody. This
aspect depends upon various considerations and facts and
circumstances of each case. If there is a possibility of his
being released and on being so released he is likely to indulge
in prejudicial activity then that would be one such compelling
necessity to pass the detention order. The order cannot be
quashed on the ground that the proper course for the
authority was to oppose the bail and that if bail is
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
granted notwithstanding such opposition the same can be
questioned before a higher Court.
(3) If the detenu has moved for bail then the application and
the order thereon refusing bail even if not placed before the
detaining authority it does not amount to suppression of
relevant material. The question of non-application of mind
and satisfaction being impaired does not arise as long as the
detaining authority was aware of the fact that the detenu was
in actual custody.
(4) Accordingly the non-supply of the copies of bail application
or the order refusing bail to the detenu cannot affect the
detenu's right of being afforded a reasonable opportunity
guaranteed under Article 22(5) when it is clear that the
authority has not relied or referred to the same. (5) When the
detaining authority has merely referred to them in the
narration of events and has not relied upon them, failure to
supply bail application and order refusing bail will not cause
any prejudice to the detenu in making an effective
representation. Only when the detaining authority has not
only referred to but also relied upon them in arriv- ing at the
necessary satisfaction then failure to supply these
documents, may, in certain cases depending upon the facts
and circumstances amount to violation of Article 22(5) of the
Constitution of India. Whether in a given case the detaining
authority has casually or passingly referred to these
documents or also relied upon them depends upon the facts
and the grounds, which aspect can be examined by the Court.
(6) In a case where detenu is released on bail and is at liberty
at the time of passing the order of detention, then the
detaining authority has to necessarily rely upon them as that
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would be a vital ground for ordering detention. In such a case
the bail application and the order granting bail should
necessarily be placed before the authority and the copies
should also be supplied to the detenu."
9. We find substance in the arguments of learned advocate,
Mr.Prajapati, that though earlier Special Civil Application
No.25423 of 2022 filed by present detenu at pre-detention
stage was decided by the Division Bench on 16.12.2022, on
the basis of the communication dated 15.12.2022 received
from Sachin Police Station, present detenu is detained in
connection with same FIR. In view of above decisions and
considering facts of present case, it is also found that some of
the documents supplied along with the detention order to the
detenu are not legible and statements of certain witnesses
have also not been supplied to the petitioner, thus, the
detaining authority has failed in supplying relevant documents
relied upon by it for passing the detention order. Moreover, in
connection with the solitary offence upon which reliance is
placed by the detaining authority, the detenu has already been
released on bail by the competent Court. Considering all these
aspects and the law laid down by Honourable the Apex Court in
the decisions referred herein above, we find that the impugned
order is required to be quashed and set aside.
10. In the result, the petition is allowed. The impugned order
of detention No.DTN/ECA/2/2023 dated 31.3.2023 passed by
the respondent No.2-District Magistrate, Surat is quashed and
set aside. The detenu is ordered to be set at liberty forthwith if
he is not required to be detained in connection with any other
C/SCA/6176/2023 JUDGMENT DATED: 12/04/2023
case. Rule is made absolute accordingly. Direct Service is
permitted.
11. In view of the order passed in the main petition, Civil
Application does not survive and stands disposed.
(A. S. SUPEHIA, J)
(DIVYESH A. JOSHI,J)
R.S. MALEK
