Gujarat High Court
Ayubkhan vs State Of Gujarat And Ors. on 6 November, 1985
Equivalent citations: 1987CRILJ1, (1986)1GLR543
JUDGMENT R.J. Shah, J.
1. This is a petition filed under Article 226 of the Constitution of India wherein the petitioner has challenged the order of detention dated 20th August 1985, Annexure 'A', passed against him under the provisions of the Gujarat Prevention of Antisocial Activities Ordinance, 1985. The grounds of detention are also of the same date and are at Annexure 'B'. The aforesaid order and the grounds show that the petitioner has been considered to be a "dangerous person" within the meaning of the said Ordinance.
2. It is pertinent to note that the Gujarat Prevention of Anti-social Activities Act, 1985, as per Section 1(3) thereof, has come into force since 27th May 1985 by virtue of the said deeming provision. The Gujarat Prevention of Anti-social Activities Ordinance 1985 was promulgated and published on 27th May 1985. Even though the said Act was published on 1st August 1985 by virtue of the said deeming provision, the Legislature has provided that it should be deemed to have come into force on 27th May 1985.
3. Under the said Ordinance, the definition of "dangerous person" as per Section 2(c) is as under:
2(c) "dangerous person" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.
4. Under the said Act the definition of "dangerous person" as per Section 2(c) is as under, 2(c) "dangerous person" means a person, who either by himself or as a member or leader of a gang, during a period of three successive years habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.
It is to be noted that the definition under the said Act states regarding the period of three successive years and so a "dangerous person" under the Act would mean a person who either by himself or as a member or leader of a gang, during a period of three successive years, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.
5. A perusal of the said grounds at Annexure 'B' shows that all th.e offences mentioned therein are of the year 1984. There is no other material or record pointing in the direction that the petitioner is a dangerous person within the meaning of the said definition. It is therefore clear that the petitioner in view of the said definition under the said Act could not have been detained under the provisions of the said Act and therefore the order of detention Annex. 'A' is vitiated on this score alone.
6. In that view of the matter, the only course left is to quash and set aside the order of detention Annexure 'A'. The petition is therefore allowed. The order of detention Annexure 'A' is hereby quashed and set aside. The petitioner is ordered to be released forthwith if not required to be detained pursuant to any other order. Rule is made absolute accordingly.