Divyaniben Ajaykumar Patel v. Union Territory of Dadra and Nagar Haveli Daman & Diu

1) Petitioner-wife of the detenu Ajay Bhula Patel @ Ajay Ghodo, resident of Patel Falia Bhimpore, Nani Daman has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India, impugning the Order dated 29th November 2023, passed under Section 3(2) of the Gujarat Prevention of Anti- Social Activities Act, 1985 (Gujarat Act No.16 of 1985)( for short ‘the said Act’), by the Respondent No.2, directing the detention of the detenu at Sub-Jail, Daman. By the impugned Order, Petitioner is preventively detained being a ‘Dangerous Person’ as defined under Section 2(c) of the said Act.

2) Heard Mr. Badgujar, learned Advocate for the Petitioner, Mr.Kedia learned Advocate for the Respondent Nos.[1] to 4, Mr. Yagnik for the State. Perused entire record produced before us and the Affidavit dated 16th January 2024, of Mr. Saurabh Mishra, District Magistrate, Daman, the Respondent No.2 herein.

3) Though the learned advocate for the Petitioner has taken various grounds in the Petition for impugning the Order dated 29th November 2023, he pressed into service ground Nos. K and L. In the said grounds, the Petitioner has stated that, there is undue delay in passing the impugned Detention Order dated 29th November, 2023, from the date of commission of the alleged crime i.e. C.R.No.15/2023 registered with Coastal Police Station, Kadaiya, under Section 385 of I.P.C. dated 29th April

2023. There is undue delay of seven months in passing the Detention Order against the detenu. That, due to the said delay the live and approximate link between the alleged offence and passing of Detention Order is snapped. That, the Detention Order is punitive in nature and not preventive, in view of the inordinate delay caused in issuing the same. He therefore prayed that, the Detention Order may be quashed and set aside.

4) Mr. Kedia, learned Advocate appearing for Respondent Nos. 1 to 4, drew our attention to the Affidavit dated 16th January, 2024 filed by Mr. Saurabh Mishra, District Magistrate, Daman, i.e. the Respondent No.2 herein. He submitted that, after the alleged offence bearing C.R. No.15/2023 dated 29th April 2023, was committed by the detenu, by following necessary legal procedure, a proposal was moved by the Sponsoring Authority on 9th November 2023, with the Detaining authority and thereafter within a reasonable period, present Detention Order dated 29th November 2023, is passed by the Respondent No.2. He submitted that, there is no error occurred at the end of the Respondent No.2 in complying with necessary legal procedure before passing the Detention Order. That, the activity of the detenu was found to be prejudicial to the public peace and order, so also to the law and order in the concerned area and therefore, the Sponsoring Authority forwarded its proposal which the Detaining Authority has accepted and after perusing the entire record, reached to the subjective satisfaction that, the detenue be preventively detained. In his elaborate arguments, he supported Detention Order dated 29th November 2023 passed by the Respondent No.2. He submitted that, there are no merits in the Petition and it may be dismissed.

5) At the outset, it is to be noted here that, the Detention Order so also the Affidavit of Respondent No.2 mentions in all 10 crimes allegedly committed by detenu. The crimes at Serial Nos.[1] to 9 were committed during the period of years 1995 till 2014. The crime at Serial No. 10 i.e. the crime which has been taken into consideration by the Detaining Authority for issuing present Detention Order is committed on 29th April 2023. There is a gap of about 9 years from commission of crime at Serial No.9 and the present crime. There is no record that, from the year 2014 till the year 2023 the detenu indulged into any criminal activity which is prejudicial to the maintenance of public order or in any manner prejudicial for maintaining peace and tranquility in the said locality.

6) It be noted here that, the impugned Detention Order is a sequel of registration of a crime i.e. C.R.No.15/2023 dated 29th April 2023, under Section 385 of I.P.C. against the detenu. Section 385 of I.P.C. being a bailable offence, the detenu was immediately released on bail by the police on the same day. As noted above in para No.4, the Sponsoring Authority moved the proposal for detention of detenu on 9th November 2023 i.e. approximately after 6 months and 15 days from the date of registration of the said crime and the Detaining Authority has passed impugned Detention Order on 29th November 2023. Perusal of Affidavit of Respondent No.2 clearly indicates that, the delay caused in issuing Detention Order including the delay caused in processing the Detention Order, has not at all been explained, least to say that, even a moderate attempt to explain it is made by the said Authority. Undoubtedly, a gap of six months is a substantial gap to allegedly control the prejudicial activities of the detenu. It is the well settled principle of law that, the delay at both stages has to be explained by the Detaining Authority and the Court is required to consider the said question, having regard to the overall view of the case. Reliance is placed on the decision of Hon’ble Supreme Court in the case of Sk. Serajul Vs. State of West Bengal reported in (1975) 2 SCC 80.

7) The Supreme Court in the case of T. A. Abdul Rahman V. State of Kerala & Ors. reported in AIR 1990 SC 225, in para Nos.11 and 12 has held as under:- “11. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.

12. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner."

8) As noted earlier, the Respondent No.2 has not at all explained delay caused in initiating the process for preventively detaining the Petitioner and subsequently his reaching to the subjective satisfaction that, the detenu is necessarily to be detained after a gap of seven months from the date of commission of the alleged crime, which has been taken into consideration for issuing the impugned Detention Order.

9) After taking into consideration the facts of the present case, we are of the considered view that, neither the Sponsoring Authority nor the Detaining Authority have explained the delay in issuing the Detention Order expeditiously, to prevent the detenu from indulging into the alleged prejudicial activity, in immediate future, by terming him as a ‘Dangerous Person’ as defined in Section 2(c) of the said Act.

10) For the reasons stated hereinabove, we are of the clear opinion that, the impugned Detention Order is vitiated on the point of delay and cannot be sustained in the eyes of law. Therefore it deserves to be quashed and set aside.

11) Hence, the following order:a) The Detention Order dated 29th November 2023, bearing No.COL/DMN/MAG/PASA/4960 passed by the Respondent No.2, is quashed and set aside. b) Petition is allowed in terms of prayer clause (a). c) Detenu-Ajay Bhula Patel @ Ajay Ghodo, be released from Jail forthwith, if not required in any other case/cases, on production of an authenticated copy of the operative part of the present Order. d) Rule is made absolute in the aforesaid terms. (SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)

SHARNAPPA MASHALKAR