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1993 DIGILAW 187 (GUJ)

Babusha Mamadsha Fakir v. STATE

1993-04-19

B.S.KAPADIA, N.J.PANDYA

body1993
B. S. KAPADIA, J. ( 1 ) THE petitioner-detenu has filed this petition for quashing the order of detention dated 17. 11. 1992 passed by the District Magistrate, Rajkot, exercising the powers under Section 3 of the Gujarat Prevention of Anti Social Activities Act ("pasa" for short) on his being satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order it is necessary to detain him. The petitioner was served with the grounds of detention on the same day. ( 2 ) IT may be mentioned that in para-2 of the grounds of detention it is stated that the petitioner was residing in Rasulpura area of Dhoraji ; that he was not doing any lawful business and hence there was no legal means of livelihood for the maintenance of his family; that the petitioner was known as "dada" in the said locality ; that he was giving threats to innocent persons and on account of that many persons could not file complaints against him before the Police or in the Court; that said ami social activities continued since 1987 and on account of the said activities detention order dated 12. 10. 1990 was passed against him under PASA and he was detained on 22. 10. 1990; that the said detention order was approved by the Government and the Advisory Board also gave the opinion that there was sufficient reasons to detain him; that against the said detention order the petitioner filed a petition being Special Criminal Application No. 103 of 1990 and this Court passed order on 28. 12. 1990 directing to release him from detention. ( 3 ) AFTER stating the aforesaid facts in para-3 of the grounds it is stated that looking to the previous history of the petitioners activities as mentioned above as well as the fact that the petitioner had continued his and social activities after being released from detention it appears that the said activities are prejudicial to the maintenance of public order and hence it was decided to detain him. ( 4 ) FURTHER facts of the case are not necessary as contention is raised by Mr. P. M. Thakkar, learned Advocate for the petitioner only on the basis of the aforesaid facts. Mr. ( 4 ) FURTHER facts of the case are not necessary as contention is raised by Mr. P. M. Thakkar, learned Advocate for the petitioner only on the basis of the aforesaid facts. Mr. Thakkar has raised the ground that once when the order is quashed by this Court the detaining authority has no jurisdiction to take into consideration the previous activities of the petitioner and therefore, the entire order is vitiated. For this purpose he has strongly relied on the judgment of the Supreme Court in the case of Chhagan Bhagwan Kahar vs. N. L. Kalna and others, AIR 1989 SC 1234 . In the said case facts were similar. There were successive detention orders. The first detention order was quashed and thereafter the second detention order passed taking into consideration the earlier detention order along with fresh facts, was held to be invalid and it was also held that Section 15 of the PASA cannot be pressed into service. ( 5 ) IT may be stated that said judgment of the Supreme Court is directly applicable to the facts of the present case inasmuch as not only it is clear from what is stated in the grounds of detention, but Mr. Thakkar, learned Advocate for the petitioner has also pointed out that when the copies of the documents were served on the petitioner he was also served with copies of the grounds of detention in the previous detention, previous detention order, order approving the previous detention order and the order of this Court quashing the previous detention order. This clearly indicates that unless the detaining authority has relied oh the earlier detention order he would not have supplied copies of the said documents. Therefore, it cannot be said that it was merely a reference of the earlier order of detention, as contended by Mr. M. R. Raval, learned AGP. Once when the provisions of Section 15 of the PAS A are not available the detaining authority could not have mixed the grounds of quashing the earlier detention order with the fresh order of detention. When that is so, order of detention is bad and illegal and on that ground the petition is allowed. The petitioner-detenu is ordered to be released forthwith, if not required in any other case. Rule is accordingly made absolute. .