IMPORTANT POINT
Unreasonable and unexplained delay in passing the order of detention vitiates the detention order, and the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution.

JUDGMENT :

A.Y. KOGJE, J.

1. This petition under Article 226 of the Constitution of India is filed with prayers as under:

“(A) YOUR LORDSHIP be pleased to issue appropriate writ, order or directions of this Hon’ble High Court, quashing and setting aside the detention order dated 07/10/2023 at Annexure ‘A’ to the petition placing the petitioner under preventive detention, in purported exercise of their powers under the Gujarat Prevention of Antisocial Activities Act, 1985, as being illegal, null and void and further be pleased to released the petitioner forthwith;

(B) YOUR LORDSHIPS be pleased to dispense with filing of affidavit in support of this petition as the facts are taken from record and also the petitioner is in jail undergoing detention order in question;

(C) YOUR LORDSHIPS be pleased to release the petitioner from his detention pending the admission, hearing and final disposal of this petition;”

2. The Detaining Authorities have detained the two brothers in connection with the similar offences, though the brothers have preferred separate petitions.

3. The present petition is directed against order of detention dated 07-10-2023 passed by the respondent – detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner – detenue as defined under section 2(c) of the Act.

4. Essentially challenge is made to the order of detention dated 07-10-2023, where the petitioner has been detained as ‘Dangerous person’ on the grounds of three F.I.R. registered against him by the Detaining Authority namely the District Magistrate, Vadodara.

4.1 Learned advocate for the petitioner has submitted that the petitioner has challenged the order of detention on the ground that the Detaining Authority has relied upon stale offences, as the offences referred to in the grounds of detention are of 2021, whereas the detention order is passed in October, 2023.

4.2 Learned advocate for the petitioner has also challenged the order of detention on the ground that three offences are registered at the time gap of almost two years; as the first two offences were registered in the month of August-October, 2021, whereas the trigering offence was registered in the month of September, 2023 i.e. after period of two years.

4.3 Learned advocate for the petitioner has submitted that nature of offence and the role attributed to the petitioner does amount to breach of public order, as each of the FIR registered against the petitioner arising out of private disputes and in fact with regard to the first offence, there is also cross FIR registered by father of the petitioner.

4.4 Learned advocate for the petitioner has submitted that the order of detention is passed on the very next day on which the petitioner was enlarged on regular bail and that there is no statement of secret witnesses to substantiate the fact of the petitioner being dangerous to the public order.

5. As against this, learned AGP for the respondent State has objected to the petition on the ground that the petitioner is involved in three offences and that offences would fall within Chapter-XVI and XVII of the IPC covered under definition of ‘Dangerous Person’ as contemplated in definition under the provisions of PASA Act. It is submitted that not only that reference to the FIR would indicate that the petitioner is indulging in mob activities and therefore, disturbing the public order.

6. Having heard learned advocates for the parties and having perused documents on record, it appears that the petitioner has been detained as ‘Dangerous Person’ by the order of detention dated 07.10.2023 by the Detaining Authority namely District Magistrate, Vadodara and along with the order of detention, grounds of detention is reflected that the Detaining Authority has relied upon three offences, which are as under: