Gujarat High Court
Dilip @ Dilip Marwadi Shankarlal ... vs State Of Gujarat on 3 October, 2023
Bench: A.Y. Kogje
NEUTRAL CITATION
C/SCA/15698/2023 JUDGMENT DATED: 03/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15698 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE sd/-
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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 ?
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DILIP @ DILIP MARWADI SHANKARLAL PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR IMRAN H PATHAN(3478) for the Petitioner(s) No. 1
MR NIRAJ SHARMA, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 03/10/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
NEUTRAL CITATION
C/SCA/15698/2023 JUDGMENT DATED: 03/10/2023
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1. Rule returnable forthwith. Learned AGP waives service of
Rule on behalf of respondent No.1- State.
2. This petition under Article 226 of the Constitution of India
is filed for following main prayer :
"16(A)YOUR LORDSHIPS be pleased to issue appropriate
writ, order or directions of this Hon'ble High Court,
directing the respondents herein to produce
relevant papers and records, orders and grounds of
detention, which has been passed against the
present petitioner and after perusing the grounds of
detention and the role of the petitioner i.e. proposed
detenu, proposed order of detention which has been
passed by the respondent no.2 i.e. the Police
Commissioner, Vadodara City and to be approved
by the State Government i.e. the respondent no.1
may be quashed and set aside in the interest of
justice."
3. Essentially, the challenge is to the order of detention,
which came to be passed on 01.02.2011, but had remained
unexecuted.
The petitioner was thereafter arrested in connection with
some other offence and while the petitioner was in custody in
connection with that offence, he had an apprehension that the
petitioner would be also now detained under the provisions of
the PASA by considering the order of detention dated
01.02.2011 based on two offences registered under the
provisions of the Prohibition Act.
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C/SCA/15698/2023 JUDGMENT DATED: 03/10/2023
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4. Learned advocate for the petitioner submitted that the
order of detention would stand vitiated only on the ground that
there is an unexplained delay of almost 12 years in executing
the detention order and though the petitioner was very much
available at the known places, there was no execution of the
detention order ever. It is submitted that in the meantime, the
petitioner was also apprehended in connection with the other
offence still the petitioner was never detained under the
aforesaid order.
5. Learned advocate for the petitioner has also drawn
attention of this Court that subsequently also in the year 2013,
the petitioner was detained under the PASA and this Court by
an order dated 22.10.2023 had quashed his order of detention.
At that stage also, the petitioner was not detained under the
order of detention dated 01.02.2011.
This Court by an order dated 12.09.2023 had issued
Notice. In response thereto, no affidavit has been filed on
record to explain the inordinate delay in executing the order of
detention.
6. Learned AGP has placed on record a copy of order of
detention as well as the grounds of detention dated
01.02.2011. Learned AGP has also placed on record a report of
Police Inspector, Chhani Police Station in connection with two
offences, which are the basis for this order of detention.
7. In rejoinder, learned advocate for the petitioner has
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C/SCA/15698/2023 JUDGMENT DATED: 03/10/2023
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submitted that the detention order will also loose its efficacy
on the ground that as a subsequent development, the
petitioner has been acquitted in connection with one of the
offence, for which, the order of detention has been passed. He
has relied upon the decision of the Hon'ble Apex Court in the
case of Saeed Zakir Hussain Malik Vs. State of
Maharastra and others reported in (2012)8 SCC 233,
particularly drawing attention of this Court to Para- 23, 24 and
25.
8. Having considered the rival submissions of the parties
and having perused the documents on record, the State has
placed on record the order of detention pursuant to the
directions contained in the order dated 12.09.2023 passed by
this Court. On perusal of the order of detention as well as the
grounds of detention dated 01.02.2011, it is clear that the
petitioner was sought to be detained for the following two
offences :
Police Name and Date of Date of Date of arrest Status
Station & address of incident registration and time
Sections Complaina
nt
Chhani Ketankumar 10.09.2010 10.09.2010 15.11.2010 at Court
Police Hirubhai at 1:50 at 5:30 19:00 Pending
Station Released on
bail on
01.01.2011
Chhani Rajendrasin 16.10.2010 16.10.2010 19.11.2010 at Court
Police h Bhimsinh at 14:05 at 15:45 19.30 Pending
Station Released on
bail on
01.01.2011
9. This Court has taken into consideration the decision of
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the Hon'ble Apex Court in the case of Saeed Zakir Hussain
Malik (Supra), wherein para- 23, 24 and 25, the Hon'ble Apex
Court has observed as under :
"23. It is clear that if there is unreasonable delay in
execution of the detention order, the same vitiates
the order of detention. In the case on hand, though
the detenu was released on bail on 11.11.2005, the
detention order was passed only on 14.11.2006,
actually, if the detenu was absconding and was not
available for the service of the detention order, the
authorities could have taken steps for cancellation
of the bail and for forfeiture of the amount
deposited. Admittedly, no such recourse has been
taken. If the respondents were really sincere and
anxious to serve the order of detention without any
delay, it was expected of them to approach the
court concerned which granted bail for its
cancellation, by pointing out that the detenu had
violated the conditions imposed and thereby
enforce his appearance or production as the case
may be. Admittedly, no such steps were taken
instead it was explained that several attempts were
made to serve copy by visiting his house on many
occasions.
24. Mr. K.K. Mani, learned counsel for the appellant
has brought to our notice a detailed representation
in the form of a petition sent to the Government of
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C/SCA/15698/2023 JUDGMENT DATED: 03/10/2023
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Maharashtra, Home Department, Detaining
Authority, Fifth Floor, Mantralaya, Mumbai on
07.08.2007. It is also seen that the same has been
acknowledged by them which is clear from the
endorsement therein. The said representation
contains the address of the detenu and his
whereabouts. There is no explanation about any
attempt made to verify the said address at least
after 07.08.2007. We are satisfied that the reasons
stated in the affidavit of the respondents explaining
the delay are unacceptable and unsatisfactory.
25. In this regard, we reiterate that the Detaining
Authority must explain satisfactorily the inordinate
delay in executing the detention order, otherwise
the subjective satisfaction gets vitiated. In the case
on hand, in the absence of any satisfactory
explanation explaining the delay of 14 ½ months,
we are of the opinion that the detention order must
stand vitiated by reason of non-execution thereof
within a reasonable time." (emphasis supplied)
10. The Court has also taken into consideration the fact that
despite the Notice being issued by this Court, there is no reply
to explain the inordinate delay in executing the order of
detention. From the facts on record, it is evident that the order
of detention was passed in the year 2011 and thereafter also,
the petitioner has been arraigned in another offences, which
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have been registered later than 2011. The petitioner was
arrested in connection with those offences and still the order of
detention has remained unexecuted.
11. The Court has also taken into consideration the fact that
in the year 2013 by an order of detention dated 06.05.2013,
the petitioner was also detained under the provisions of the
PASA, which was subject matter of challenge in Special Civil
Application No.10505 of 2013, where by CAV judgement dated
22.10.2013, the order of detention of the petitioner dated
06.05.2013 came to be quashed and set aside. Even at that
stage, the court does not find that any effort was made on
behalf of the detaining authority to execute the order of
detention dated 01.02.2011, which is the subject matter of the
present petition.
12. In view of the aforesaid facts situation and considering
the subsequent development, where the order of detention
dated 01.02.2011 based on two offences registered against the
petitioner, wherein the petitioner has been acquitted in
one such offence and considering the observations made by
the Hon'ble Apex Court in the case of Saeed Zakir Hussain
Malik (supra), the court is of the view that the order of
detention has now lost his efficacy in absence of any
explanation from the State on the detaining authority to
explain the inordinate delay.
13. In the result, this Special Civil Application is allowed. The
order of detention dated 01.02.2011 being
NEUTRAL CITATION
C/SCA/15698/2023 JUDGMENT DATED: 03/10/2023
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PCB/PASA/DTN/20/11 passed by the respondent - Police
Commissioner, Vadodara City is hereby quashed and set aside.
Rule is made absolute accordingly.
Direct service is permitted.
sd/-
(A.Y. KOGJE, J)
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL..
