IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1427 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES 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? -------------------------------------------------------------- SANDIP OMPRAKASH GUPTA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1427 of 2003 MS SUBHADRA G PATEL for Petitioner No. 1 MR KP RAWAL ASSTT GOVERNMENT PLEADER for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 11/06/2003 ORAL JUDGEMENT At the outset, this Could would like to refer important observations in respect of "Personal liberty, a fundamental right" made by the Apex Court in case of Chowdarapu Raghunandan [ para-6 & 7, 2002 AIR SCW 1322 ] which reads as under : "6. In Mohd. Subrati alias Mohd. Karim v. State of West Bengal [1973] 3 SCC 250, 256] this Court observed thus :- "It must be remembered that the personal liberty of an individual has been given an honoured place in the fundamental rights which our Constitution has jealously protected against illegal and arbitrary deprivation, and that this Court has been entrusted with a duty and invested with a power to enforce that fundamental right." 7. Dealing with solitary act in a preventive detention matter, Krishna Iyer, J. in Anil Dey v. State of West Bengal [ (1974) 4 SCC 514] observed as under :- "A swallow cannot make a summer ordinarily, and a solitary fugitive act of criminality may not normally form the foundation for subjective satisfaction about the futuristic judgment that the delinquent was likely to repeat his offence and thereby prejudicilly affect the maintenance of supplied and services essential to community". #. Heard learned advocate Ms.Subhadra Patel on behalf of the petitioner and learned AGP Mr.K.P.Rawal appearing for respondents. In the present petition, Rule has been issue d on 14th February, 2003 making it returnable after six weeks. #. By way of this petition, the petitioner has challenged the detention order dated 7th December, 2002 passed by the Police Commissioner, Surat City under the provisions of Section 3[1] of the PASA Act, 1985. Pursuant to the said detention order, the petitioner has been detained in District Jail, Junagadh. From the record, it transpires that against the petitioner, one offence came to be registered on date 13th October, 2002 at Kapodara Police Station being C.R.No.763 / 2002 under Section 66[1][b], 65[e][a] and 81 of the Prohibition Act. The petitioner has been arrested on 16th October, 2002 and thereafter, he was released on bail. The detaining authority has considered two unregistered offences dated 29th September, 2002 and 3rd November, 2002 as disclosed by the secret witnesses on 22nd November, 2002 and the same was verified by the detaining authority on 5th December, 2002 and the second statement is dated 20th November, 2002 which came to be verified by the detaining authority on 5th December, 2002. The respondents detaining authority has filed affidavit-in-reply against the present petition. #. Learned advocate Ms.S.G.Patel has raised various contentions to challenge the detention order but according to her, two contentions are enough to vitiate the order of detention. The first contention raised by her that only one solitary incident registered against the petitioner under the provisions of the Bombay Prohibition Act and on that basis the detention order has been passed by the detaining authority. In support of her contention, she has placed reliance on the decision of the Apex Court in case of DARPAN KUMAR SHARMA V. STATE OF T.N. AND OTHERS reported 2003 [2] SCC 313. The second contention raised by the learned advocate Ms.Patel to the effect that the statements of the secret witnesses were recorded by the sponsoring authority on 20th November, 2002 and 22nd November, 2002 respectively and the same were verified by the detaining authority on 5th December, 2002 and proposal forwarded on 23rd November, 2002 and therefore, when proposal was forwarded to the detaining authority, at that occasion, the statements of the secret witnesses have not been verified by the detaining authority. She, therefore, submitted that in the statements given by the secret witnesses, wherein said alleged two incidents disclosed, have not been factually verified by the detaining authority. In short, the submission is, the genuineness of the incident or credibility of the witnesses is required to be examined by the detaining authority, which has not been examined by the detaining authority, which amounts to non application of mind on the part of the detaining authority and therefore also, the order of detention is vitiated. #. Learned AGP Mr.K.P.Rawal on behalf of the respondents while opposing the petition and supporting the detention order, submitted that the detaining authority has considered all three incidents against the petitioner at the time of passing of the detention order. He also submitted that the detention order passed on 7th December, 2002 and at that occasion, the detaining authority having material against the detenu which reflects that one registered offence under Bombay Prohibition Act and two unregistered offence under IPC and after considering the entire material, the detaining authority having reached subjective satisfaction that there is no other course upon for the detaining authority except to exercise the powers under the provisions of the PASA, 1985. He also submitted that the detaining authority has applied his mind in respect of the materials placed before him and the detaining authority has also considered lesser drastic remedy under the Bombay Police Act and Code of Criminal Procedure, so also, the Bombay Prohibition Act and ultimately, the detaining authority felt that the lesser drastic remedies so available, are not sufficient and much effective unless the petitioner is immediately booked under the PASA, otherwise, the public order and peace will be disturbed by the petitioner. He also submitted that the detaining authority has rightly claimed the privilege under Section 9[2] of the PASA Act as both the witnesses are afraid for disclosing their names and address to the police authority and therefore, after considering the entire material before him and having reached to the subjective satisfaction, the order of detention came to be rightly passed by the detaining authority. Learned AGP Mr.Rawal has, in support of his say, relied on the decisions of the Apex Court in case of AMANULLA KHAN KUDEATALLA KHAN PATHAN V. STATE OF GUJARAT AND OTHERS reported in [1999] 5 SCC 613 and especially supplied the emphasis on the observations made in para-4 & 5 of the aforesaid decision. He, therefore, submitted that ultimately the detaining authority has to consider the degree of the actin which has been taken by the petitioner in the society and any kind of action which resulted into disturbance of public order and peace either that has been committed by the dangerous person or even by the bootlegger, the authority having powers under Section 3[4] of the PASA Act to pass such order of detention against such person. However, learned AGP Mr.Rawal also relied upon provisions of Section 2[b] and 2[c] of the Act, wherein the class "Bootlegger" and "Dangerous Person" is defined under the Act. Mr.Rawal has also placed reliance on Section 3[4] of the Act that if any person acting in any manner prejudicial to the maintenance of public order when such person is engaged in or is making preparation for engaging in any such activities, whether as a bootlegger or a dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Section 3[4] makes it clear in its explanation given by the statute. Therefore, in short, his submission is, it is not case of the solitary incident because another two unregistered offence have also been taken into consideration by the detaining authority while passing the order of detention. Therefore, after considering the material, the detaining authority having reached subjective satisfaction and that subjective satisfaction cannot be interfered with by this Court while exercising the powers under Article 226 of the Constitution of India. He also submitted that said two unregistered offences are serious in nature and according to the narration of said two statements, when it was specifically made it clear that because of the activities of the petitioner, it has disturbed the public order and peace prejudicial to the interest of the society. #. I have considered submissions made by the both the learned advocates for the parties. The fact remains that one registered offence recorded against the petitioner being C.R.No.763 / 2002 at Kapodara Police Station on 30th October, 2002 under the provisions of the Bombay Prohibition Act. As contended by the learned advocate Ms.S.G.Patel, in all four accused viz. present petitioner, Jayantibhai Jakshibhai Vagharar [Parmar], Vasantbhai Jakshibhai Vaghari [Parmar], Omprakash Thakurpasad Gupata were involved in the very offence referred above. According to the submissions, said Omprakash Thakurprasad Gupta is father of the present petitioner. The detaining authority has passed four orders of detention while considering the same set of facts against all four accused. Against said orders of detention, the remaining three accused viz. Jayantibhai Jakshibhai Vaghari [Parmar], Vasantbhai Jakshibhai Vaghari [Parmar], Omprakash Thakurpasad Gupata preferred a writ petitions being Special Civil Applications Nos.1400/ 2003, 1374 / 2003 and 587 / 2003 respectively. Learned advocate Ms.S.G.Patel has made a statement at bar before this Court that the orders of detentions passed against three accused who are said to have involved in offence registered vide C.R.No.763/2003 at Kapodara Police Station, have been quashed and set aside by this Court vide order dated 4th and 6th June, 2003 respectively. However, she asserted that since she has personally attended the matter i.e. SCA No.587/2003, she makes a statement that the impugned order of detention has been quashed and set aside by this Court only on the ground of one solitary incident kept in mind the detaining authority while passing the detention order. However, she submits that since the copy of the said order dated 6th June, 2003 passed by this Court is not available on computer center, the same could not be produced before this Court. Therefore, considering the statement made by the learned advocate Ms.Patel that the detention orders passed against the three accused, out of total four accused, involved in a very offence based on the very same set of facts, merely taking into consideration two unregistered offence as disclosed by the secret witnesses and one registered offence, have been quashed and set aside by this Court on the ground of solitary incident. It may be appreciated that out of said three accused against whom the detention order passed and the same are set aside by this Court, one of the accused happens to be father of the present petitioner and therefore also, naturally this Court cannot take a different view in the matter once this Court has examined the issue and passed such order quashing and setting aside the detention orders. However, detailed submissions made by the learned AGP Mr.Rawal attempting to distinguish the facts while relying on the decision of the Apex Court in case of AMANULLA KHAN KUDEATALLA KHAN PATHAN, this Court is required to be examine the issues again on the basis of the submissions and objections raised by the learned AGP Mr.Rawal. #. To appreciate the submissions of the learned AGP Mr.Rawal, it is pertinent to read the definitions of "Boot-legger" and "Dangerous Person" given under Section 2[b] and [c] of the PASA Act. At the same time, it is also required to read the provisions of Section 3[4] read with explanation. Looking to the detention order impugned in this petition, it is noticed that the same has been passed by the detaining authority branding the petitioner as "Bootlegger" and not as "Dangerous Person". But considering the entire scheme of the Act, either the bootlegger or the dangerous person whoever commits any offence or carrying out any activity which disturb the public tempo and peace of the society, then only, the detaining authority is entitled to pass appropriate order of detention under the PASA Act. Therefore, there is no dispute as to the powers of the detaining authority to pass the detention order against the bootlegger while keeping in mind the activities as "dangerous person". But looking to the facts of the present case, only one registered offence under Bombay Prohibition Act registered against the petitioner along with other two unregistered offence under IPC and as result thereof, the petitioner has been branded as the "Bootlegger". However, it is submission of the learned AGP Mr.Rawal that in a recent decision in case of DARPAN KUMAR SHARMA reported in [2003] 2 SCC 313 which has been relied by the learned advocate Ms.S.G.Patel, wherein the earlier decision of the Apex Court in case of AMANULLA KHAN KUDEATALLA KHAN PATHAN V. STATE OF GUJARAT AND OTHERS reported in [1999] 5 SCC 613 has not been considered and therefore, especially relied on decision in case of AMANULLA KHAN KUDEATALLA KHAN PATHAN V. STATE OF GUJARAT AND OTHERS. I may be noted that this Court has considered both the decisions of the Apex Court and the distinction in the facts of these two judgments and the facts of this case, is mainly "registered offence" against the detenu. As transpires from the facts of the case of AMANULLA KHAN KUDEATALLA KHAN PATHAN, there was one solitary incident registered offence against the detenu. In the facts of the present case, there is only one registered offence recorded under the Bombay Prohibition Act, admittedly not under the IPC. On the other, the fact cannot be ignored that there are two unregistered offence which can attribute provisions of IPC, disclosed by the secret witnesses against the present petitioner. But it is pertinent to note that as such, no complaint is filed by the police authority against the petitioner. However, the observations made by the Apex Court in para-5 in case of DARPAN KR.SHARMA v. STATE OF T.N. reported [2003] 2 SCC 313 require to be appreciated which reads as under :- "5. The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of a knife a sum of Rs.1000. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act, it is stated that in the case of "Goonda" the acts prejudicial to public order are "when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order" (Section 2[a][iii]). The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention." #. The Apex Court has considered the important question "whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place of public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention. From the facts of the case before Apex Court, it transpires that only offence being Crime No.377 / 2002 under Section 379 of IPC registered against the detenu. Similarly, even in the case of AMANULLA KHAN KUDEATALLA KHAN PATHAN V. STATE OF GUJARAT AND OTHERS reported in [1999] 5 SCC 613, facts reveal that there was registered offence against the detenu being C.R.No.36/97 under Section 120-B, 387 and 506[2] of IPC. The taste laid down by the Apex Court in the aforesaid decision is quoted as under: "Even an activity violating an ordinary legal provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of society that determines whether the activities can be said to be prejudicial to the maintenance of public order or the same amounted to breach of law and order. The fallout and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society." Thus, looking to the observations made by the Apex Court in para-5 in aforesaid case, the real taste is that the fallout and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. This being the real taste, whether the powers require to be exercised by the detaining authority under the PASA Act or not. In light of above observations, if the case on hands is examined, it becomes clear that there is only one registered offence under the Bombay Prohibition Act, which obviously, cannot disturb the peace of public tempo or place of public order and therefore, it cannot be considered to be prejudicial activities in any manner which may not prompt to say, that it would have disturbed the public peace or place of public order in the society. The allegation against the petitioner that he is selling liquor in the society but there is nothing compelling to the persons in the society to buy liquor from the petitioner. Except this, no other activity which could disturb the public peace or the public order in the society is notice or recorded against the petitioner. Therefore, such activity which is said to be have been carrying out by the petitioner, can normally be covered by the ordinary law to prevent him and it cannot be considered beyond capacity of ordinary law to deal with him. The second aspect that there are two unregistered offence disclosed by the secret witnesses who were not intending to disclose their identity before the detenu concerned, against the petitioner - detenu and therefore, as a result thereof, their names did not disclose to the detenu. But the question is, if the responsible officer upon disclosure of two unregistered offence by the secret witness and having notice the seriousness of the offence which are said to have committed by the petitioner on the basis of the statement recorded by the police, as to why necessary prosecution not lodged against the petitioner detenu under the provisions of the IPC. It requires to be appreciated that the police officer and / or authority is competent enough and fully empowered under the law to deal with such person like petitioner under the ordinary law viz. IPC and other laws, upon disclosure of serious offence by the secret witnesses and as to why such course has not been adopted before passing of the detention order against the petitioner. #. Similar aspect has been considered by the Apex Court in case of Chowdarapu Raghunandan reported in 2002 AIR SCW 1322. The Apex Court has considered that a solitary incident of smuggling, no allegation that detenu's past conduct involved anti social activities visiting foreign country twice as tourist. No conclusive proof that baggages containing contraband goods belong to the detenu. Investigation whether baggages belonged to another person pending, detention based on inchoate material is set aside. The relevant observations made by the Apex Court in para-14 and 21 are quoted as under :- "14. It is true that in appropriate case, an inference could legitimately be drawn even from a single incident or smuggling that the person may indulge in smuggling activity but for that purpose antecedents and nature of the activities carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was necessary to detain him. It is also settled law that an order of preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a seres of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. If there is non application of mind by the authority on this aspect, then the Court is required and is bound to protect the citizen's personal liberty which is guaranteed under the Constitution. Subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. The question, therefore, would be from the past conduct of the petitioner as set out in the grounds of detention or other circumstances, whether reasonable inference could be drawn that he is likely to repeat such acts in the future. In the present case, past conduct of the petitioner is that he is Engineering graduate and at the relevant time he was Managing Director of a public limited company. There is no other allegation that he was involved in any other anti social activities. Only allegation is that he visited Singapore twice as a "Tourist". Admittedly, the petitioner has filed bail application in a criminal prosecution for the alleged offence narrating the fact that his so-called statement was not voluntary and was recorded under coercion. The baggages were not belonging to him and there was no tags on the same so as to connect him with the said baggages and the crime. At the time of hearing of this matter also, it is admitted that the baggages were without any tags. It is also an admitted fact that there is nothing on record to hold that the petitioner was involved in any smuggling activity. However, the learned Additional Solicitor General submitted that in the statement recorded by the Customs Department petitioner had admitted that previously he had visited Singapore twice as a "tourist" and therefore, it can be inferred that the petitioner might have indulged and was likely to indulge in such activities. This submission is far fetched and without any foundation. From the fact that a person had visited Singapore twice earlier as a "tourist", inference cannot be drawn that he was involved in smuggling activities or is likely to indulge in such activities in future. Hence, from the facts stated above, it is totally unreasonable to arrive at a prognosis that the petitioner is likely to indulge in any such prejudicial activities. 21. In the above context, what is required to be seen is as to whether on the materials placed on record, it could reasonably be said to indicate any organised act or manifestation of organised activity or give room for an inference that the petitioner