etition Criminal No 5 37 of 1988
Under Article 32 of the Constitution of India Dr YS Chitale MK Pandit PH Parekh JH Pare kh and MN Sompal for the Petitioner
45 PS Poti Mrs H Wahi and MN Shroff for the Respondent section The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
This is a petition under Artic le 32 of the Constitution of India challenging the legality a nd validity of the order of detention dated 1791988 passed by the detaining authority the Commissioner of Police Ahmed a bad City clamping upon the petitioner the detenu herei n the impugned order of detention under Sub section 2 of Section 3 of the Gujarat Prevention of Anti Social Activ i ties Act 1985 on the ground that he on the materials plac ed before him was satisfied that it was necessary to make th is order of detention with a view to preventing the detenu fr om acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City and directed t he detenu to be detained in Sabarmati Central Prison
In purs u ance of the said order the detenu has been detained in t he aforesaid prison
The Government approved the order of detention on 2191988
The detenu submitted his representation dat ed 2291988 to the Ist respondent who by his order dat ed 3091988 rejected the same
Hence this Writ Petition
Before adverting to the arguments advanced by Dr Ch i tale on behalf of the detenu we would like to produce t he relevant portion of the grounds of detention which rea ds thus  
As such you are a dangerous person as defined in section 2c of the said Act and known as dangerous perso n
As you with the aid of your Associates create dangero us atmosphere in the said vicinity you disturb public peac e maintenance and as such following offences were register ed against you with Police Records and in which you we re arrested
Plice Offence Section Decision No Station Regd
No 1
Sabarmati 14081 324 114 Compro IPC mised 16282 2
Sherkotda 41182 332323 PT 114 IPC 46 3
Sherkotda 41282 PIC 147 148 PT 149307 BP Act 1351 4
Sherkotda 45285 IPC 302 Not 1093 proved 5
Sabarmati 34687 IPC 302 In the 10934 Court While considering complaints in the above cases Identif i cation Chehra Nissan Register and charge sheets co n tents carefully it is found that you with the aid of yo ur associates in the said area give threats to innoce nt people and cause injuries to them by showing dangero us weapons that like Acid Knife sharp weapons
As such y ou commit offences punishable for causing injuries to hum an body and which are punishable in Indian Pen al Code    Dr Chitale the learned counsel for the petition er took us through the grounds of detention and the oth er relevant records particularly the copies of the statemen ts of witnesses on the basis of which the detaining authori ty has claimed to have drawn his subjective satisfaction f or passing this impugned order of detention and raised vario us contentions inter alia contending 1 The material a nd vital fact namely the acquittal of the detenu in the cas es registered in Crime Nos
411 and 412 of 1982 of Sherkot da Police Station as shown at Serial Nos 2 and 3 in the tab le appended to grounds of detention which fact would ha ve influenced the minds of the detaining authority one way or the other on the question whether or not to make the dete n tion order has not been placed before the detaining autho r ity and this non placing and the consequent non consider a tion of the said material likely to influence the minds of the detaining authority vitiates the subjective satisfacti on and invalidates the detention order 2 Leave apart t he non disclosure of the names of the witnesses on whose stat e ments the detaining authority placed reliance to draw h is subjective satisfaction claiming privilege under Secti on 92 of the Act the grounds of detention otherwise a re vague or deficient and lacking details with regards to t he names of the associates  for the disclosure of which no privilege could be claimed and hence it was not possible f or the detenu in the absence of the names of the so call ed associates  to make an effective representation against t he order of detention the deprivation of which amounts to an infringement of the 47 constitutional safeguard provided under Article 225 of t he Constitution of India 3 Though the authority has me n tioned in more than one place the words your associate s  which fact evidently should have influenced the mind of t he detaining authority in making this impugned order the nam es of the associates are nowhere disclosed which fact wou ld show either the authority did not know as to who the assoc i ates were or knowing the names of the associates he h as refrained from furnishing it to the detenu thereby disabli ng the detenu to make his effective representation and 4 T he materials placed before the detaining authority were hard ly sufficient to draw any conclusion that the alleged activ i ties of the detenu were detrimental to the   maintenan ce of public order   A plethora of decisions were cited by Dr Chitale
T he learned counsel for the respondent Mr Poti vehement ly urged that the contentions urged by Dr Chitale do not mer it consideration and the detaining authority in the prese nt case is justified in passing this order of detention
M r Poti also cited number of decisions in support of his su b missions
We shall now examine these contentions in seriatim
In the grounds of detention five cases register ed against the detenu in respect of which he had been arrest ed are taken into consideration by the detaining authority to draw his subjective satisfaction that the detenu was di s turbing the maintenance of public order
Out of the fi ve cases two cases mentioned under Serial Nos 2 and 3 a re shown as PT  that is pending trial
In other words on 17988 ie the date of passing the order of detention t he detaining authority was of the opinion that the trials of both the cases were not over though actually the detenu h ad been acquitted even on 2681988 in the case relating to Crime No 411 of 1982 and on 5688 in the case relating to Crime No 41282
Though the acquittal of both the cases a re admitted the date of acquittal of Crime No 41182 is giv en as 6788 in the counter
In the Writ Petition two grou nd Nos 10 and 11 are with reference to these cases
They re ad as follows 10
The petitioner states that in the grounds of detenti on the detaining authority has mentioned erroneously that Ca se No 411 of 1982 is pending
In fact the said Case w as decided by the Court on 2681988 and the petitioner w as acquitted by the judgment dated 2691988 delivered by t he Metropolitan Magistrate Court No 7 Ahmedabad
When 48 grounds of detention were passed and when the detenti on order was passed in September 1988 the detaining authori ty has taken a non existing fact into account that the sa id case was pending trial
The detention is liable to be quashed on this ground also
Likewise the grounds of detention mention ed that Case No 412 of 1982 is pending which is erroneous
T he said case was decided on 561988 and the petitioner w as acquitted
The detention is liable to be quashed for taki ng this non existing ground
 These two grounds are answered by the detaining author i ty in paragraphs 12 and 13 of his affidavit in reply swo rn in December 1988 which read thus 12
With reference to the averments made in para 10 of t he petition I say that the same are not true  and deni ed hereby
I say that the petitioner was acquitted in Crime N o 411 of 1982 by the Metropolitan Magistrate Court No 7 Ahmedabad by an order dated 671988
However it is submi t ted that each activity of the petitioner is a separa te ground of detention against the petitioner and therefor e even if the petitioner is acquitted in the said Crimin al Case the detention order is not vitiated on that count
With reference to the averments made in para 11 of t he petitioner I say that the same are not true and deni ed hereby
I say that it is true that in the Criminal Case N o 41282 the petitioner was acquitted by the Sessions Cou rt No 20 Ahmedabad on 561984
However as submitted here i nabove each activity of the petitioner is a separate grou nd for detention of the petitioner and therefore the fa ct that the petitioner was acquitted in Criminal Case No 4 11 Sec 412 of 1982 has no bearing on the detention order a nd the detention order cannot be said to be vitiated on th at count Though as per Section 6 of the Act the grounds of dete n tion are severable and the order of detention shall not be deemed to be invalid or inoperative if one ground or some of the grounds are invalid the question that arises for co n sideration is whether the detaining authority was real ly aware of the acquittal of the detenu in those two cases 49 mentioned under Serial Nos 2 and 3 on the date of passi ng the impugned order
It is surprising that the detaini ng authority who has specifically mentioned in the grounds of detention that the petitioner s cases 2 and 3 were pendi ng trial on the date of passing the order of detention has co me forward with a sworn statement in reply filed nearly thr ee months after signing the grounds of detention that he kn ew that the accused had been acquitted in both the cases
T he averments made in paragraphs 12 and 13 in the affidavit in reply are not clear at what point of time the detaini ng authority came to know of the acquittal of the detenu in both the cases
At any rate it is not his specific ca se that the fact of acquittal was placed before him for consi d eration at the time of passing the impugned order
But wh at the authority repeatedly states is that each activity of the petitioner is a separate ground of detention and ad ds further that the fact that the petitioner was acquitted in Criminal Case No 41182 and 41282 is of no consequence 
We are unable to comprehend the explanation given by t he detaining authority
It has been admited by Mr Poti th at the sponsoring authority initiated the proceedings a nd placed all the materials before the detaining authority on 1491988 by which date the petitioner had already be en acquitted in the above said two cases
Thus it is clear th at either the sponsoring authority was not aware of the acqui t tals of those two cases or even having been aware of t he acquittals had not placed that material before the detaini ng authority
So at the time of signing the order of detentio n the authority should have been ignorant of the acquittal section Evidently to get over the plea of the detenu in the wr it petition in this regard for the first time in the counte r the detaining authority is giving a varying statement as if he knew about the acquittal of the detenu in both the case section As ruled by this Court in Shiv Ratan Makim vs Union of Ind ia  Ors 1985 Supp
3 SCR 843 at page 848 even if a criminal prosecution fails and an order of detention is th en made it would not invalidate the order of detention b e cause as pointed out by this Court in Subharta vs State of West Bengal  the purpose of preventi ve detention being different from conviction and punishment a nd subjective satisfaction being necessary in the former whi le proof beyond reasonable doubt being necessary in t he latter the order of detention would not be bad mere ly because the criminal prosecution has failed
In the prese nt case we would make stress not on the question of acquitt al but on the question of non placing of the material and vit al fact of acquittal which if had been placed would ha ve influenced the minds of the detaining authority one way or the other
Similar questions arose in Sk
Nizamuddin vs State of West Bengal  in which the dete n tion order was passed under the provisions of Maintenance of 50 Internal Security Act
In that case the ground of detenti on was rounded on a solitary incident of theft of alumini um wire alleged to have been committed by the detenu therei n
In respect of that incident a criminal case was filed whi ch was ultimately dropped
It appeared on record that t he history sheet of the detenu which was before the detainin g authority did not make any reference to the criminal ca se launched against the petitioner much less to the fact th at the prosecution had been dropped or the date when the pet i tioner was discharged from the case
In connection with th is aspect this Court observed as follows We should have thought that the fact that a criminal ca se is pending against the person who is sought to be proceed ed against by way of preventive detention is a very materi al circumstance which ought to be placed before the Distri ct Magistrate
That circumstance might quite possible have an impact on his decision whether or not to make an order of detention
It is not altogether unlikely that the Distri ct Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained no order of detention should be made for t he present but the criminal case should be allowed to run i ts full course and only if it fails to result in convictio n then preventive detention should be resorted to
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to t he District Magistrate
 It is true that the detention order in that case was s et aside on other grounds but the observation extracted abo ve is quite significant
The above observation was subsequent ly approved by this Court in Suresh Mahato vs The Distri ct Magistrate Burdwan and Others AIR 1975 SC 720 and in As ha Devi vs Additional Chief Secretary to the Government of Gujarat  Ant  In the latter case i e Asha Devi it has been pointed out    if material or vital facts which would infl u ence the minds of the detaining authority one way of t he other on the question whether or not to make the detenti on order are not placed before or are not considered by t he detaining authority it would vitiate its subjective sati s faction rendering the detention order illegal
 51 In Sita Ram Somani vs State of Rajasthan and Other s certain documents which were claimed to ha ve been placed before the Screening Committee in the fir st instance were not placed before the detaining authority a nd consequently there was no occasion for the detaining autho r ity to apply its mind to the relevant material
In t he circumstances of that case a principal point was rais ed before this Court that there was no application of mind by the detaining authority to those vital materials which we re with held
This Court while answering that contenti on observed thus No one can dispute the right of the detaining authority to make an order of detention if on a consideration of t he relevant material the detaining authority came to t he conclusion that it was necessary to detain t he appellant But the question was whether the detaining a u thority applied its mind to relevant considerations
If it did not the appellant would be entitled to be released
 From the above decisions it emerges that the requisi te subjective satisfaction
the formation of which is a cond i tion precedent to passing of a detention order will g et vitiated if material or vital facts which would have beari ng on the issue and weighed the satisfaction of the detaini ng authority one way or the other and influenced his mind a re either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority befo re issuing the detention order
It is clear to our mind that in the case on hand at the time when the detaining authori ty passed the detention order this vital fact namely t he acquittals of the detenu in case Nos
mentioned at seri al Nos 2 and 3 have not been brought to his notice and on t he other hand they were withheld and the detaining authori ty was given to understand that the trial of those cases we re pending
The explanation given by the learned counsel f or the respondents as we have already pointed out cannot be accepted for a moment
The result is that the nonplacing of the material fact namely the acquittal of detenu in t he above said two cases resulting in non application of min ds of the detaining authority to the said fact has vitiated t he requisite subjective satisfaction rendering the impugn ed detention order invalid
Since we have now come to the conclusion that the ord er of detention is to be set aside on the first ground itsel f we are not inclined to traverse on other grounds
In t he premises the impugned order is set aside and the Wr it Petition is allowed
We direct that the detenu be set at liberty forthwith
PSS Petition allowed


Summary:
Sub section
1 of section 33 of the Income Tax Act 1961 provid es that subject to the provisions of section 34 thereof developme nt rebate may be claimed as a deduction in respect of a n ew machinery or plant
Clause a of sub section
3 of section 34 stip u lates that the said deduction shall not be allowed unless an amount equal to 75 per cent of the development rebate is debited to the profit and loss account of the releva nt previous year and credited to a reserve account and t he Explanation thereto provides that the deduction shall not be denied by reason only that the amount so credited to t he reserve account exceeded the amount of the profit of su ch previous year
The appellant assessee which had a textile mill claim ed a sum as development rebate for the assessment year 1962 6 3
The Income Tax Officer rejected the claim on the ground th at the assessee had not created a reserve as contemplated by sub section
3 of section 34 and his order on appeal was upheld by the Assistant Commissioner
In second appeal the claim by the assessee found favour with the Appellate Tribunal b ut on a reference made by it at the instance of the Revenu e the High Court held that the assessee had failed to comp ly with the conditions of sub section
3 of section 34
The appella nt contended that the view taken by the High Court was erron e ous and that it was not necessary that a reserve should ha ve been created in the previous year
Dismissing the appeal HELD In order to claim the deduction on account of development rebate under sub section
1 of section 33 it is obligat o ry that the debit entries in the profit and loss account a nd the credit entry in a reserve account should be made in t he relevant previous year in which the 87 machinery or plant is installed or first put to use
T he development rebate contemplated by sub section
1 of section 33 cannot be allowed as a deduction unless a reserve accou nt has been created in the previous year in which the install a tion or first use occurs
Any doubt in so reading the prov i sions because of a want or insufficiency of profit in su ch previous year has been removed by the Explanation to clau se a of sub section
3 of section 34
91D E What is contemplated is the creation of a Reserve Fu nd in the relevant previous year irrespective of the result of the profit and loss account disclosed by the books of t he assessee
Mere book entries will suffice for creating such a Reserve Fund
The debit entries and the entries relating to the Reserve Fund have to be made before the profit and lo ss account is finally drawn up
That is a condition for secu r ing the benefit of development rebate
89E F West Laikdihi Coal Co Ltd Calcutta vs Commissioner of Income tax West Bengal 11  Commission er of Income tax Delhi Central vs Modi Spinning  Weavi ng Mills Co Ltd and Indian Overseas Ba nk Ltd vs Commissioner of Income tax Madras  distinguished
Additional Commissioner of income tax vs Vishnu Indu s trial Enterprises and Commissioner of Income tax vs UP Hotel and Restaurants Ltd 1984 1  overruled
Dodballapur Spinning Mills Ltd vs Commissioner of Incometax Karnataka 2 and Anr a nd Indian Oil Corporation Ltd vs section Rajagopalan Income T ax Officer Companies Circle HI Bombay and Others  referred to