IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9980 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE M.S.PARIKH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? No. 2. To be referred to the Reporter or not? No. J 3. Whether Their Lordships wish to see the fair copy of the judgement? No. 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No. 5. Whether it is to be circulated to the Civil Judge? No. -------------------------------------------------------------- AKBARKHAN @ BABAKHAN NAZAROOLAKHAN PATHAN Versus POLICE COMMISSIONER -------------------------------------------------------------- Appearance: MR BN RAVAL with MR ANIl DAVE for Petitioner. MRS. AMIBEN YAGNIK, A.P.P. for Respondents. -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.PARIKH Date of decision: 25/02/97 ORAL JUDGEMENT By way of this petition under Article 226 of the Constitution of India the petitioner-detenu has brought under challenge the detention order dated 30-1-1996 passed by Respondent no.1 under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (Act of 16 of 1985), hereinafter referred to as the PASA Act." 2. The grounds of detention have been placed on record at annexure 'A'. It can be seen therefrom that the detaining authority has placed reliance on the following cases. -------------------------------------------------------- Sr. CR No. Provisions of the Remarks. No. I.P. Code. 1. 2. 3. 4. --------------------------------------------------------- 1. Navrangpura u/s 365-368-384-342- Pending Police 324 of IPC and u/s in the Station CR 25(1)(b)(a) of the Court. No.497/92. Arms Act. 2. Odhav Police u/s 120(b)-302-307 of Pending Station CR the IPC, u/s 25(1)(c), in the No.254/92. 27 of the Arms Act and Court. u/s 3-5 of TADA Act. 3. Dariapur u/s 336-114 of the IPC Pending Police Station and u/s 125(1)(b)A of in the CR No.212/92 the Arms Act. Court. 4. Navrangpura u/s 365-368-384-323- Pending Police Station 506(2)-120 (b)-342 of in the CR No.842/92. the IPC and u/s 25(1) Court. B.A. of the Arms Act. 5. Gomatipur u/s 365-342-506(1)-323 Pending Police Station of the IPC and u/s in the CR No.404/92 25(1)(c) of the Arms Court. Act. 6. Navrangpura 384-114-506(1) of the Pending Police Station IPC. in the CR No.742/95. Court. -------------------------------------------------------- 3. Over and above the aforesaid cases, the detaining authority has relied upon the statements of four witnesses stating about the incidents dated 16-9-1996 and 7-10-1996 indicating about beating of the concerned witnesses in public and creating atmosphere of fear. Considering this material the detaining authority has recorded the finding that the petitioner-detenu is a "dangerous person" within the meaning of Section 2(c) of the PASA Act and with a view to preventing him from acting in any manner prejudicial to the public order, he found it necessary to pass the impugned order of detention which is subjected to challenge in this petition. 4. I have heard Mr. Anil Dave with Mr. B.N. Raval, learned Advocate for the petitioner and Mrs. Amiben Yagnik, Learned A.P.P. for the respondent. 5.. The impugned order has been challenged on number of grounds. However, it would not be necessary to record and deal with the same when this petition is required to be allowed on the ground of non-supply of the copies of the bail applications and bail orders in so far as co-accused Omprakash Panjabi and Jahangir Mahejban in respect of the offences registered in Dariapur Police Station CR No.212/92 are concerned. This ground appears at para 21 (c) of the petition which reads as under "- "21(c) - The petitioner states and submits that the bail applications and bail orders of the co-accused who were enlarged on bail by the competent court in C.R.No.212/1992 registered at Dariapur Police Station has not been placed by the sponsoring authority before the detaining authority. It is further submitted that those vital documents being bail applications and bail orders of the co-accused are not supplied to the detenu even though in the compilation at page 88 an averment has been made by the petitioner-detenu before the Court of learned Metropolitan Magistrate at Ahmedabad. The co-accused who were enlarged on bail by the competent court, being a vital circumstances for releasing the petitioner-detenu on bail and when specifically the averments have been made by the petitioner-detenu in his bail application as to C.R. No.212/1992 registered at Dariapur Police Station, non-placement of the aforesaid documents before the detaining authority and non-supply of the vital documents, has vitiated the subjective satisfaction of the detaining authority and further it has also infringed the valuable right of the detenu of making an effective representation under Article 22(5) of the Constitution of India. The co-accused who were released on bail by the court of learned Metropolitan Magistrate, Ahmedabad are 1) Omprakash Panjabi & 2) Jehangir Mahejban. The bail application and the bail orders of the said accused are thus vital documents." 6. No affidavit in Reply has been filed. Having gone through the grounds of detention and other documents supplied to the detenu it has been fairly conceded that the aforesaid documents have not been supplied as alleged by the petitioner. In this connection reliance has been placed on a decision of this Court rendered on 1st August 1996, (Coram:-K.R. Vyas, J.) in Special Civil Application No.3661 of 1996, where the following observations were made: "....the bail applications as well as the bail orders passed in favour of the co-accused are relevant documents and, therefore, copies thereof ought to have been supplied to the detenu. The non-supply of the copies thereof has adversely affected the right of the detenu of making an effective representation against his detention guaranteed under Article 22(5) of the Constitution of India. The Supreme Court in State of U.P. V/s. Kamal Kishore Saini, 1988 (1) SCC 287 has held that bail application filed by the co-accused and the order passed therein constitute relevant material, which was required to be produced before the detaining authority and the detaining authority was required to apply its mind to such relevant material. When such a relevant material is withheld from the detaining authority, the Apex Court held that the satisfaction of the detaining authority is vitiated inasmuch as the relevant material is kept back from the detaining authority and, therefore, its subjective satisfaction is vitiated." 7. It has, however, been submitted by the learned A.G.P. that even if the material has been placed before the concerned authority it would not have changed his subjective satisfaction inasmuch as the bail application of the petitioner and the order passed thereon by the concerned Court were sufficient for having subjective satisfaction for passing the impugned order of detention. Similar submission was made before the Apex Court in Kamal Kishore's case (supra). This is how the contention appears. "Against this order the instant appeal has been filed on special leave. The learned Counsel appearing on behalf of the State-appellant, did not question before us the validity and legality of the finding of the High Court in so far as it relates to the non-supply of the relevant and vital materials, that is, the statements recorded under Section 161 of the Code of Criminal Procedure so far as ground No.1 of the order of detention is concerned, to the detenu and also of the non-placement of the application made by the co-accused before the Judicial Magistrate to the effect that the detenus were falsely implicated in the said case as Vijay pratap Singh was fired at by some unknown assailants and this fact was also mentioned in the bail application made by the detenu before the Court and the police report submitted thereon. The only challenge made on behalf of the appellant is to the finding of the High Court to the effect that the incidents referred to in ground Nos.1 and 2 created only law and order problem and it did not affect public order. In other words, the even tempo of the life of the community has not at all been affected by the said incident. It is relevant to mention in this connection that the names of the detenus were not mentioned in the FIR in respect of incident in ground No.1 and the basis of their complicity came to be known only in the material found in the course of the investigation. The detenus were supplied only with the copy of the FIR and also extract of the charge-sheet and not the statements under Section 161 of the Code of Criminal Procedure. It is undisputed that the charge-sheet was subsequently submitted in the Court and the respondents were furnished with the copies of the statements recorded under Section 161 of the Cr. P.C. long after the passing of the order of detention communicating the grounds of detention. Similarly, with regard to ground No.3, the application of the co-accused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon, were not produced before the detaining authority before passing the detention order. The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would not have changed the subjective satisfaction as this has never been accepted as a correct proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatory required under the Act. This finding of the High Court is quite in accordance with the decisions of this Court in the case of Asha Devi V. K. Shivraj and Gurdip Singh V. Union of India." The Apex Court dealt with the matter in this respect in Para 15 of the citation and observed:- "Moreover, we have already upheld the finding of the High Court that the order of detention is illegal and bad for non-supply of vital documents to the detenus to enable them to make an effective representation against the grounds of detention and as such their right to make an effective representation as contemplated under Article 22(5) of the Constitution of India has been infringed rendering the impugned order as illegal and bad." 8. In my opinion, therefore, the argument canvassed on behalf of the respondents by the learned A.G.P. is squarely met with by the decision of the Apex Court in Kamal Kishore's case (Supra). 9. In the result, the continued detention of the petitioner is required to be held illegal. Order accordingly. The impugned order of detention is, therefore, quashed and set aside. The petitioner-detenu Akbarkhan @ Babakhan Nazaroolakhn is directed to set at liberty forthwith if his detention is not required for any other purpose or case. Rule made absolute accordingly. -0-0-0-0-0-