IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 16330 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES 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? -------------------------------------------------------------- DHARMESHBHAI RANJIT GHANTIWALAALIAS VANIYAWALA Versus COMMISSIONER OF POLICE OF THE CITY OF SURAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 16330 of 2003 MR ANIL S DAVE for Petitioner No. 1 MR KAMEN N SHUKLA for Petitioner No. 1 Ms P B Sheth, AGP for Respondent No. 1-2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 07/04/2004 ORAL JUDGEMENT The petitioner has filed this petition under under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside an order dated 14.9.2003 passed by respondent No.1 herein under section 3(2) of the Gujarat Prevention of Anti-social Activities At, 1985 (for short, 'the PASA Act') directing detention of the present petitioner on the grounds stated in the detention order. 2. It was alleged against the petitioner that one case of prohibition under sections 65 and 66 of the Bombay Prohibition Act, 1949 was registered before Chowkbazar police station CR No. 173/03 on 26.7.2003 alleging that he was found in possession of 152 bottle foreign liquor. He was arrested in connection with the said offence on 7.8.2003. It was also alleged that two witnesses had given statements against the petitioner and, therefore, the petitioner was considered to be a bootlegger and hence he was ordered to be detained. The petitioner has challenged the detention order on the ground that the alleged activity would not be treated to be a threat to public order or public health. It has also been contended that the names of the unnamed witnesses who had rendered their statements have not been disclosed to the petitioner and, therefore, the petitioner could not effectively represent her case. Therefore, the order of detention is illegal and deserves to be quashed and set aside. 3. On receipt of the petition, rule was issued and in response to the notice of rule, Ms P B Sheth, learned AGP appears on behalf of the respondents. I have heard the learned Advocates for the parties and have perused the papers. 4. On going through the grounds of detention, it is clear that except the said one prohibition offence, no other offence was registered against him. Now simply one offence was registered, it cannot be said that the petitioner's activity had led to a threat to public order or public health. 5. So far as the statements of unnamed witnesses are concerned, two witnesses have given statements against the petitioner. It is well settled that before considering the statements of the witnesses, the detaining authority is required to supply names of the said witnesses to the detenu. It is true that under section 9(2) of the Act, the detaining authority has power of privilege to withhold names of the witnesses. However, this Court (Coram: Hon'ble Mr Justice A L Dave) in an order in Special Civil Application No.294/2000 passed on 19.4.2000 clearly laid down that before claiming privilege under section 9(2) of the Act, the detaining authority must have credible material before it in order to ascertain the reasonable fear or apprehension in the mind of the witnesses whose names have not been disclosed to the detenu. It has also been observed that if there is no credible material before the detaining authority, even non-disclosure of the names of the witnesses would violate principles of natural justice and consequently the petitioner's right of making representation under Article 22 (5) of the Constitution of India has been frustrated and hence the order of detention cannot be sustained in the eye of law. 6. For the foregoing reasons, this petition is allowed. The impugned order of detention dated 14.9.2003 passed by respondent No.1 is ordered to be quashed and set aside. The detenu is ordered to be set at liberty forthwith, if no longer required in any other case. Rule is made absolute to the aforesaid extent. No order as to costs. D.S. permitted. [D P Buch, J.] msp