IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 13811 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE A.L.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- IRFAN GULAM HAIDAR SHAIKH Versus POLICE COMMISSIONER -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 13811 of 2003 MS BANNA S DUTTA for Petitioner No. 1 MR SS PATEL, AGP, for Respondent No. 1-3 RULE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE A.L.DAVE Date of decision: 27/11/2003 ORAL JUDGEMENT 1. Commissioner of Police, Baroda City, Baroda, passed an order on the 1st August, 2003 in exercise of powers under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA Act" for short), detaining the petitioner under the provisions of the said Act. 2. The detaining authority took into consideration two theft cases registered against the petitioner, so also the statements of two anonymous witnesses dated the 11th and the 17th July, 2003. The statements were verified on the 28th and the 29th July, 2003. The detaining authority considered the activities of the detenu as that of a dangerous person as defined under the PASA Act and observed that the petitioner is required to be immediately prevented from pursuing his activities, which are detrimental to public order. The authority also considered the possibility of resorting to less drastic remedies and came to conclusion that detention under PASA Act is the only remedy that can be resorted to. 3. The petitioner challenges the order of detention on various grounds. Learned advocate appearing for the petitioner, has restricted her arguments to the ground that there is improper exercise of powers under Section 9(2) of the PASA Act. She submitted that the authority has not undertaken the exercise of verifying the correctness and genuineness of the fear expressed by the witnesses qua the detenu. She submitted further that the grounds of detention do not indicate any satisfaction recorded by the detaining authority to indicate that the activities of the detenu are detrimental to public health and, therefore, there is improper exercise of powers under Section 3 of the PASA Act. She further submitted that, so far as the offences are concerned, they are theft cases and there is no disturbance to public order. She submitted that the petition may, therefore, be allowed. 4. Mr. Patel, learned Assistant Government Pleader, has opposed this petition. 5. Considering the rival side contentions, it may be noted that the detaining authority has observed that the fear expressed by the witnesses and the statements and the statements are correct and genuine. Barring this statement in the grounds of detention, there appears nothing to indicate an exercise having been undertaken by the detaining authority for verifying correctness and genuineness of the statements and the fear expressed by the witnesses. The detaining authority has to take into consideration the background, the antecedents, the character, etc. of the detenu while considering the need for exercise of powers under Section 9(2) of the PASA Act. The authority has to scale the right of the detenu of making an effective representation on the one hand and the public interest on the other and has to strike a balance between the two. The detaining authority has not filed any affidavit nor is there any contemporaneous material to indicate undertaking of such exercise by the detaining authority and, therefore, the exercise of powers under Section 9(2) of the PASA Act can be taken to have vitiated. No reliance, therefore, can be placed on these statements for sustaining the order of detention. There is improper exercise of powers under Section 9(2), as there is no material to indicate the exercise as stated above (Kajalben G. Sindhi v. Commissioner of Police, 2000(1) GLH 320 and Kishore Naginbhai Parmar v. State of Gujarat & Ors., 2000(4) GLR 3236 ). 6. The satisfaction regarding disturbance to public order also does not seem to be well founded. The registered cases are all theft cases and they do not indicate anything to support disturbance to public order. The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law on aspect of disturbance to public order as distinct from law and order. The petition, therefore, deserves to be allowed. 7. In the result, the petition is allowed. The impugned order of detention dated the 1st August, 2003, passed against the detenu, Irfan Gulam Haider Shaikh is hereby quashed. The detenu is ordered to be set at liberty forthwith, if not required in any other matter. Rule is made absolute with no orders as to costs. 8. Direct service is permitted. [ A.L. DAVE, J. ] gt