MOHMED HANIF MEHMUD MALEK@ BHURI Vs. JAGTHEESA PANDIAN, DISTRICT MAGISTRATE, BHARUCH
LAWS(GJH)-1988-12-26
HIGH COURT OF GUJARAT
Decided on December 20,1988

Mohmed Hanif Mehmud Malek@ Bhuri Appellant
VERSUS
Jagtheesa Pandian, District Magistrate, Bharuch Respondents

JUDGEMENT

P.M.CHAUHAN, J. - (1.)The District Magistrate has passed the order of detention after recording on the file that petitioner was a bootlegger with long standing criminal record and detention was essential in the interest of public order. The District Magistrate did not state that he was satisfied of the existence of circumstances wherein activities of petitioner were prejudicial to the maintenance of public order and hence it was necessary to detain him. The very basis of detention order is lacking in this particular case. The District Magistrate also did not care to ascertain and record that the activities of the detenu were prejudicial to the maintenance of public order and with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it was necessary to detain him. The District Magistrate failed to record the summing up of the prima facie evidence against the detenu which is normally done in such cases with a view to establish that he applied mind to the facts of the case that also reflects non-application of mind. The District Magistrate appears to have taken it lightly and passed the laconic order casually without application of mind. The detention order, therefore, deserves to be quashed on that ground.
(2.)It is now well settled that the detaining authority must be conscious of the fact as to whether activities of the person concerned can be prevented or he can be removed from harm's way by any other less drastic action against him. Such action may not be required to be taken but the detaining authority must be conscious of such action at the time of passing the detention order. That is necessary as the detention is drastic action and the detenu is to be detained without trial. It is apparent that the District Magistrate failed to consider this aspect, nor was alive to this aspect at the time of passing the detention order. It is true that the District Magistrate tried to explain this fact in the affidavit-in-reply filed by him and stated that he considered all these aspects, but what is necessary is that such aspects should be before him and he should consider them at the time of passing the order and not that he may be alive to such aspects subsequently. Subsequently stating that he was alive to such alternative less drastic remedies at the time of passing the detention order would not save the situation. On this ground also the order passed by the District Magistrate should be quashed.
Rule made absolute.

;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.