AHMED HUSEN ALIAS KALIO SHAIKH HUSEN SHAIKH Vs. COMMISSIONER OF POLICE AHMEDABAD

JUDGEMENT

(1.) Petitioner detenu challenges the legality and validity of the detention order dated 12/07/1987 which has been passed by the Commissioner of Police Ahmedabad City under the relevant provisions of the Gujarat Prevention of Anti:-Social Activities Act 1985 (hereinafter referred to as the Act).

(2.) The petitioner has been detained inter alia on the ground that he is a bootlegger and his activity as bootlegger is adversely affecting the maintenance of public order and therefore with a view to preventing him from acting in this manner it was necessary to detain him. The order of detention is challenged inter alia on the ground that the detaining authority himself has not applied his mind to the material on the basis of which the order of detention is passed and has mechanically passed the order. These allegations have in terms been made in para 29 of the petition. In the affidavit in reply filed by the detaining authority the aforesaid allegations are sought to be met with by averments made in paras 41 and 47. There in it is stated that the detaining authority has taken into consideration the lesser drastic measure and has taken into consideration the entire material placed before him and thereafter he has passed the order of detention.

(3.) In order to verify the facts we requested the learned Counsel for the respondents to show us the original file and point out to us as to how the proposal for detention was mooted and ultimately passed by the detaining authority. It appears on going through the original file that on 11/07/1987 the Police Inspector concerned had made the proposal. On the same day the Superintendent of Police has forwarded the proposal to the Deputy Commissioner of Police. The Deputy Commissioner of Police also has on the same day passed the proposal and forwarded the papers to the detaining authority i.e. the Commissioner of Police Ahmedabad City. The Superintendent of Police and the Deputy Commissioner of Police have made endorsement in the same file forwarding the papers to the immediate superior authority. After the endorsement is made by the Deputy Commissioner of Police no endorsement is made by the detaining authority. Nowhere in the file it is recorded that the detaining authority has gone through the papers considered the material and thereafter he has formed the opinion that it was necessary to detain the petitioner under the relevant provisions of the Act. There is no dispute with regard to the fact that there is no such endorsement on the file indicating the requisite satisfaction having been arrived at by the detaining authority for passing the order of detention. After the endorsement made by the Deputy Commissioner of Police straight way a copy of the order of detention is there on the file. Of course the order Of detention is signed by the Commissioner of Police that is the detaining authority.