IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4348 of 1999 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 Civil Judge? : NO -------------------------------------------------------------- GARASIYA RANJITSINGH MAHOBATSINGH ALIAS RANUBHA Versus DISTRICT MAGISTRATE BHAVNAGAR -------------------------------------------------------------- Appearance: MR UI VYAS for Petitioner MR DP JOSHI , AGP, for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE Date of decision: 14/12/1999 ORAL JUDGEMENT 1. The detenue came to be detained under the provisions of the PASA by virtue of an order passed by the District Magistrate, Bhavnagar on March 08, 1999 in exercise of powers under sub-section [1] of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 [hereinafter referred to as `the PASA Act', for short]. In the grounds of detention, District Magistrate [detaining authority herein] took into consideration the four offences registered against the petitioner, statements of four anonymous witnesses recorded by the sporing authority and came to a conclusion that the petitioner is a dangerous person as defined under the PASA Act. The detaining authority also recorded a subjective satisfaction for need for exercise of powers u/s 9[2] of the PASA Act and came to a conclusion that alternative less drastic remedy is not possible to be resorted to for immediately preventing the petitioner from pursuing his illegal and anti social activities. 2. The petitioner - detenue has approached this Court with this petition under Article 226 of the Constitution of India assailing the order of detention on various grounds. The main ground being that the exercise of powers u/s 9[2] of the PASA Act is without application of mind and therefore, legally not genuine. This has resulted into infringement of right under Article 22[5] of the Constitution of India, which would vitiate the detention. 3. Mr.Vyas, learned advocate appearing for the petitioner submitted that the statements of four anonymous witnesses were recorded on 24th February 1999. The statements were verified on 8th March 1999 by the detaining authority and the order came to be passed on the same day i.e. on 8th March 1999. He submitted that there was no time with the detaining authority to genuinely verify the correctness and genuineness of the statements made by the anonymous witnesses in respect of incidents narrated by them and the fear expressed by them qua the petitioner and therefore, the petition amy be allowed. He placed reliance on the decision of the Division Bench of this Court in the case of Kalidas Chandubhai Kahar v/s State of Gujarat as reported in 1993[2] GLR 1659. 4. Mr. D.P.Joshi, learned AGP for the respondents has opposed this petition. 5. It is evident from the copies of documents produced on record that the statements of anonymous witnesses were recorded on 24th February 1999, and the same were verified by the Dy.S.P. Mahuva on the same day and were verified by the detaining authority by putting a one word endorsement "verified" on 8th March 1999. It is also evident that the order is passed on that very day. 6. The detaining authority has exercised powers u/s 9[2] of the PASA Act and has claimed privilege of not disclosing the identity of the witnesses whose statements are relied upon by the detaining authority. These powers are to be exercised in public interest. While exercising these powers, it is expected of the detaining authority to strike a balance between the requirement of public interest on one hand and protection of the right of the detenue on the other hand and therefore, it is expected of the detaining authority to apply its mind to all these relevant aspects always while exercising the powers u/s 9[2] of the PASA Act. The exercise of verification is not to be taken as an empty formality. The authority must have some material to come to a conclusion that the fear expressed by the witnesses qua the detenue is genuine and there is danger to the person and property of the witness as apprehended by him from the detenue, then only the powers can be exercised. In the instant case, the statements were verified on 8th March 1999 and the order was passed on the same day. The detaining authority has not filed any affidavit as to what material it had before it while the proposal was considered and while the question of exercising the powers u/s 9[2] of the PASA Act was considered. It is also not placed on record as to when the proposal was received by the detaining authority. It is not also pleaded before this Court as to what were the consideration that weighed with the detaining authority for exercise of its powers. Under the circumstances, in view of the decision in the case of Kalidas Kahar [supra], the petition deserves to be allowed. 7. The petition is allowed. The impugned order of detention passed by the District Magistrate, Bhavnagar on 8th of March 1999 in respect of the detenue Garasiya Ranjitsinh Mahobatsingh alias Ranubha, is hereby set aside. The detenue be set at liberty forthwith, if not required to be detained in custody for any other case. Rule is made absolute accordingly with no orders as to costs. [ A.L.DAVE, J. ] ***** parmar*