IMPORTANT POINT
The obligation of the government to consider and dispose of the representation made by the detenue under Article 22(5) of the Constitution of India, and the importance of expeditiously considering and disposing of the representation without avoidable delay.

JUDGMENT :

A.Y. KOGJE, J.

1. This petition is filed under Article 226 of the Constitution of India for the following relief:

“(a) YOUR LORDSHIPS be pleased to issue appropriate writ, order or directions and be pleased to quash and set aside the impugned order of detention dated 22/09/2023 (Annexure ‘A’ to the petition) passed by the respondent no.2 in the interest of justice;

(b) xxx .. xxx.. xxx

(c) xxx .. xxx.. xxx

(d) xxx .. xxx.. xxx”

2. The challenge is to the order of detention dated 22.09.2023 passed by the respondent– detaining authority viz. the Commissioner of Police, City Ahmedaabad, 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, relying upon two IPC offences and treating the petitioner as ‘Dangerous Person’.

3. Learned advocate for the petitioner submitted that has challenged the order of detention on the ground that the petitioner was enlarged on regular bail by the Court of competent jurisdiction in the first offence and when he was apprehended in the second offence, the police authority had an option to object to the grant of regular bail in the second offence, still the petitioner was enlarged on regular bail and thereafter also, the detaining authority has not resorted to the lesser drastic remedy of cancellation of bail before passing the order of detention.

4. Learned advocate has also challenged the order of detention on the ground that the petitioner had made a detailed representation on 22.11.2023 to the Home Department, State Government and also made representation to the detaining authority for considering the representation by the appropriate authority i.e. the State Government, still petitioner has not received any reply to such representation and in fact, the representation having remained undecided. The State is in breach of requirement of Article 22 Clause 5. In this regard, learned advocate has relied upon the decision of the Hon’ble Apex Court in the case of Rajammal Vs. State of T. N. and Another, reported in (1999) 1 SCC 417, and the decision of the Hon’ble Apex Court in the case of Tara Chand Vs. State of Rajasthan and Ors., reported in (1980) 2 SCC 321.

5. Learned AGP has objected to grant of the petition by submitting that the detaining authority has correctly relied upon two offences which are falling under chapter 16 and 17 of the IPC and therefore, considering the proximate period during which the offences have been committed, the petitioner has been considered as a habitual offender and therefore, detained as dangerous person. Learned AGP has also pointed out that apart from these two offences, there is another offence also registered at Madhavpura police station against the petitioner.

6. Having considered the rival submissions of the parties and having perused the documents on record, the challenge is to the impugned order dated 22.09.2023 by the Commissioner of Police, City Ahmedabad, detaining the petitioner as ‘dangerous person’ based on two offences registered within the Commissionrate. The details of which in tabular form are as under:

7. The Court has firstly taken into consideration Annexure-C collectively placed on record being a representation addressed by the petitioner immediately on 22.11.2023 to the detaining authority as well as the State Government for considering such representation. The right to make representation forms the part of the right of the petitioner under Article 22(5) of the Constitution of India.

8. This representation though received by the detaining authority as well a