JUDGMENT
C.K. Thakkar, Actg. C.J.
1. This appeal is filed against dismissal of SCA No. 597 of 1999 by the learned Single Judge on August 3, 1999.
2. Appellant was the original petitioner. He was detained by the Commissioner of Police, Surat City, Surat under the provisions of the Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act"). In the order of detention, it was stated that the detaining authority was satisfied that with a view to preventing the detenu from acting in a manner prejudicial to maintenance of public order, it was necessary to detain him and accordingly, the order was passed. In the grounds of detention of even date, it was stated that four cases have been registered against the detenu in the year 1998.
3. On March 29, 1998, at about 18.00 hours, the detenu had gone to the residence of Smt. Jaina Bibi, wife of Anwarhusein Shakurbhai Shaikh at Surat and teased her daughter Yashminbanu, aged about 16 years. He also misbehaved with her for which a complaint was filed against the detenu for the offences punishable under Sections 452, 352, 323, 504 , 506(2) ,427 of the Indian Penal Code read with Section 135 of the Bombay Police Act. In connection with the said incident, the detenu was arrested on March 30, 1998 and charge sheet was submitted on May 4, 1998 . The said case and is pending.
4. On April 3, 1998, at about 21-30 hours, the detenu along with his associates had gone to Smt. Gomaben, widow of Khetabhai Atmaram and assaulted her as well as her son Anil. A complaint for that incident was filed for offences punishable under Sections 326, 504 and 114 IPC read with Section 135 of the Bombay Police Act. The detenu was arrested on April 4,1998 and charge sheet was submitted on June 17, 1998. The case awaits trial.
5. On May 26,1998, at 23-00 hours, the detenu and his brother Jayesh assaulted Pravin Dhanjibhai . They also threatened him to kill for which, a complaint was filed for the offences punishable under Sections 504, 506(2) read with Section 114 of the IPC read with Section 135 of the Bombay Police Act. For that incident, the detenu was arrested on October 9, 1998 and charge sheet was submitted on the same day.
6. Lastly, on October 22, 1998, at about 23.30 hours, the detenu in the company of his brother Jayesh went to Smt. Jainabibi, wife of Anwarbhai Shakurbhai Shaikh and asked her to withdraw the cases filed against the detenu, or else to prepare for dire consequences. A case was registered for that incident under Sections 504, 506(2), 114 IPC , the detenu was arrested on November 7,1998 and charge sheet was also submitted on November 16,1998. That case is yet to go for trial.
7. Over and above four cases, two statements have been recorded by the authority on November 20 and 21, 1998 respectively.
8. The first witness stated that on the last Dev Diwali day, at about 2 p.m. the detenu and his two associates had come to the business premises of the witness and demanded Rs. 500/-. On refusal to pay the amount, the witness was beaten . He was also assaulted with knife. He shouted for help and other persons assembled . 4-5 persons came forward to save the witness but the detenu threatened them that if they would come forward, they would also be killed. All persons went away. Shops and Lorry-Gallas were closed down. It affected even tempo of life and it adversely affected public order.
9. The second witness stated that on November 8, 1998, at 5-00 p.m. the detenu, in the company of 7-8 persons, assembled near business premises of the witness. It was objected to by the witness. Detenu got excited and he asked as to who the witness was and why he was asking him not to sit there. The witness was thereafter beaten by the detenu as well as by his associates. When the witness shouted for help, the detenu took out a knife. All persons who had come there went away to save their lives. Shops and Lorry-Gallas were shut down. The witness was having Rs. 500/- with him which were taken away by the detenu. He was also threatened that if he would file a complaint, he would be killed.
10. On the basis of the above complaints and the statements which, the detaining authority has stated that he himself had verified on December 14, 1998, an order of detention was passed on December 15, 1998.
11. Being aggrieved by this order, the above petition came to be filed by the detenu.
12. Several contentions were raised before the learned Single Judge. It was argued that the impugned order was liable to be set aside on the ground that there was no causal connection and live link between the acts in question and the order of detention inasmuch as the last complaint registered against the detenu was of May 1998 . It was urged that even if statements were to be taken on their face value, the last incident was of November 8,1998 and the order was passed on December 15,1998. Thus, there was gap of more than one month from the last incident.
13. It was also submitted that neither the names of witnesses were disclosed nor material particulars were furnished so as to enable the detenu to make effective representation before the detaining authority and it has deprived the detenu of his valuable right of making "effective representation", which was violative of Article 22(5) of the Constitution.
14. It was argued that the privilege claimed under sub-section (2) of Section 9 of the Act was not well founded. There was nothing on record to withhold names and particulars of witnesses. Such privilege could not have been claimed and the action was illegal and the order of detention is liable to be quashed
15. Subjective satisfaction was vitiated on the ground of non-application of mind as though there was no recovery of knife from the detenu, the detaining authority had taken into consideration the said fact.
16. Lastly, it was submitted that the acts in question at the most can be said to be creating " law and order" situation and not affecting "public order" . The detaining authority could not have invoked the power of detaining the detenu under Section 3 of the Act and the action was liable to be quashed and set aside.
17. The learned Single Judge after considering the facts and circumstances of the case as also the arguments of both the sides, held that none of the contentions raised on behalf of the detenu deserved acceptance and as the order could not be said to be invalid or contrary to law, it was not liable to be set aside. By passing the order of detention, the detaining authority had not committed any error of law nor it can be said that subjective satisfaction was vitiated and accordingly, the petition was dismissed.
18. Being aggrieved by the order passed by the learned Single Judge, the detenu has filed this appeal.
19. At the time of hearing, several contentions were raised which were raised before the learned Single Judge. An additional contention was also raised that though a representation was made to the detaining authority on December 30, 1998, it was not disposed of by the authorities and hence, the order was liable to be quashed.
20. It may be stated that though the petition was filed on January 22,1999 and it was disposed of as late as on August 3,1999 i.e. after more than six months, no counter affidavit was filed on behalf of the detaining authority. On August 17, the present appeal was filed. On the next date i.e. on August 18, 1999, notice was issued by the Division Bench making it returnable on September 6,1999. No affidavit was filed in the present proceedings also. On September 27, 1999 we passed the following order:
" Mr. Joshi, Asstt. Govt. Pleader states that he has not received any papers. The matter relates to detention. He will take necessary instructions and will make himself ready for final hearing on September 30 , 1999."
Today, the matter is heard finally and even today, there is no affidavit by the detaining authority.
21. As stated above, over and above the cases registered against the detenu, two statements came to be recorded by police authorities .On the basis of the said statements, it was contended by the learned AGP that subjective satisfaction was recorded by the detaining authority that the activities of the detenu were adversely affecting public order and hence, it was necessary to detain him with a view to preventing from such activities. Reliance was placed on several decisions of the Supreme Court as well as of this Court. The question ,therefore, is whether it was necessary to detain the detenu with a view to preventing him from acting in a manner prejudicial to maintenance of public order.
22. Mr. Dave, in this connection, invited our attention to a decision of the Division Bench of this Court in Shamjibhai Manjibhai Patel vs. Commissioner of Police, City of Ahmedabad and another, 1992 (2) GLR 1360. In that case, apart from the cases registered against the detenu, four statements were recorded by the authorities and an order of detention was passed. All the four incidents were independent and separate and in respect of all of them, statements were recorded. In all the four statements, it was alleged that the activities of the detenu affected even tempo of life. The Division Bench considered the statements in paras 16 and 17 of the report and observed :
"16. Taking the statements of the four witnesses one after another, it becomes clear that the initial paragraph of the statement of witness No. 1 whose name has not been disclosed, is too vague and general alleging certain anti social activities on the part of the petitioner detenu. The second part of the statement is in respect of the incident which had allegedly taken place before about eight days at about 7 p.m. at Bapuanagar Char Rasta near a bus stand. The witness has stated that he had gone to a Pan Biri Shop with a view to purchase a Pan, but at that time, the petitioner detenu, who was drunk had come there on Hero Honda Motor Cycle with a hockey and he had indulged in teasing and on accosting by the witness, he was enraged and had assaulted upon the witness and had firstly given 2 or 3 fist blows and later on had given hockey blows on his back and at that time, a crowd of about 100 to 200 people had collected there and the members of the crowd were also threatened. It is also stated that because of this incident, the shops were closed down and there was a traffic jam and the people in the surrounding area were scared. The statement of witness No. 2 is also on the same line and refers to an incident which had allegedly taken place before about 5 days at about 9.00 p.m. According to the witness, he was closing his shop for the day and at that time, the petitioner detenu had approached him and had tried to extort some money from him and on his refusal, he was assaulted upon and thereafter the petitioner detenu had tried to take some money from his pocket and later on the petitioner detenu had tried to inflict some injuries on his person by the razor. At that time, a crowd of about 100 people came to be collected, the members of which were also threatened and the nearby shops were closed down.
17. Witness No. 3 in his statement dated 23.9.1991 refers to an incident which had allegedly taken place before about 15 days, during which the witness was intercepted and the petitioner detenu had charged him as a `police agent' and later on had tried to inflict injuries on his person by the dagger. Witness says that because of this incident, a crowed of about 50 to 100 people was collected and that the petitioner detenu had threatened the members of the crowd as a result of which the shutters of the shops were dropped down and there was a scare and panic in the nearby area. The last statement of witness No. 4 recorded on the same day is on the same lines. According to the witness, the petitioner detenu had travelled by the auto-riskshaw of the witness and on demanding the fare, the petitioner detenu had taken out Rampuri knife as a result of which a crowd was collected., the shops were closed down, the traffic had jammed and the people were scared."
23. The Division Bench then considered the law laid down by the Apex Court in Piyush Kantilal vs Commissioner of Police, Ahmedabad City, AIR 1989 SC 491 and T. Devaki vs. State of Tamil Nadu, AIR 1990 SC 1086. In Piyush Kantilal , similar circumstances were before the detaining authority and it was alleged that detention of the detenu was necessary in order to prevent activities of the detenu in maintenance of public order. Similarly, in T. Devaki panic amongst people in the hall in which the incident took place and in nearby vicinity was high lighted . It was also alleged that people were scared and had run helter skelter. Inspite of such allegations, the Supreme Court held that they were not cases of maintenance of public order and hence, an action of preventive detention was uncalled for.
24. The Division Bench following the above cases, observed that in the opinion of the Supreme Court, the selective phrases in the statements would not take out the case from maintenance of law and order to that of maintenance of public order and as power of detention could not be used for maintenance of law and order, but only for public order, the order of detention made in such circumstances could not be upheld.
25. Again, in Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police and others, 1995 (2) GLR 1268 (SC) , the Supreme Court considered the relevant decisions on point including the decision in Arun Ghosh vs. State of West Bengal, 1970 (1) SCC 98 and held that stray incidents would not affect "public order" and order of detention cannot be passed in such cases.
26. So far as the cases against the detenu are concerned, they have already been registered. They were against persons mentioned therein which is stated in the grounds of detention by the detaining authority. Regarding two statements, having taken into account the law laid down by the Supreme Court in Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740 and reiterated from time to time including the decisions referred to by us hereinabove, the case falls under the maintenance of "law and order" and not "public order". The subjective satisfaction arrived at by the detaining authority, therefore, cannot be said to be legal, valid and in accordance with law. Since in the facts and circumstances, an order of detention could have been passed by the detaining authority for maintenance of "public order", the order deserves to be quashed and is hereby set aside. The detenu is ordered to be set at liberty forthwith unless required in any other case. Appeal is accordingly allowed. No order as to costs. Before parting with the matter, we may observe that recently, we have come across few cases wherein no counter-affidavits are filed by the respondents. It is settled law that whenever an order of detention is challenged by a detenu or by his "next friend", it is the duty of the authorities to justify the action by filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or authority other than the detaining authority (vide Halsbury's Laws of England, 4th edition, Vol. 11, paras 1492-95; pp 791-93; Mohd. Subrati vs. State of W.B., AIR 1973 SC 207; Kanu Sanyal vs. District Magistrate, Darjeeling, AIR 1973 SC 2684' Khudram v. State of W.B. ,AIR 1975 SC 550; Ranjit Singh vs. State of Pepsu, AIR 1959 SC 843; Dulal vs. State of W.B., AIR 1974 SC 2561; Abdul Gaffar vs. State of W.B., AIR 1975 SC 1496; Krishna Murari vs. Union of India, air 1975 SC 1877; Shaikh Hanif vs. State of W.B. AIR 1974 SC 679; Vijay Narain vs. State of Bihar, AIR 1984 SC 1334; Suraj Pal vs. State of Mahrashtra, AIR 1986 SC 2177).
27. It is really a matter of regret that though long time has elapsed, the detaining authority did not take care to file an affidavit-in-reply. The order of detention was passed on December 15,1998 i.e. before ten months. A petition was filed as early as on January 22, 1999 and though the learned Single Judge decided it on August 3,1999, i.e. after more than seven months, no step was taken by the detaining authority to file counter and the matter was decided without affidavit. The matter did not end there. When appeal was filed against that order, the Division Bench issued notice on August 18, 1999 in LPA and it was made returnable on September 6, 1999. Even thereafter time was granted at the request of learned AGP and the matter is finally heard today, i.e. on October 1, 1999. Yet, no counter is filed. We hope and trust that in future, in such matters, when a citizen is deprived of his personal liberty by keeping him behind the bar under preventive detention laws without trial by a competent court, the detaining authority will be much more careful and make all endeavours to place all the facts and circumstances on record justifying the action taken. The registry is directed to send a copy of this order to the Secretary, Home Department as also to the Chief Secretary. Direct service permitted.