IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 21 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 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 -------------------------------------------------------------- DEEPAK MANGA MARU Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: MR SATISH R PATEL for Petitioner Mr. DP Joshi, AGP for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 25/04/2001 ORAL JUDGEMENT The present petition is preferred by the petitioner-detenu Deepak Manga Maru who has been detained by an order of the Police Commissioner, Surat City, dated 24.7.2000 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"). The petitioner challenges the impugned order of detention availing the protection under Article 21 and 22 of the Constitution of India and had, therefore, approached this court with this petition under Article 226 of the Constitution of India. 2. The petition was admitted by this Court by issuing rule thereon on 3.1.2001 and it was made returnable after four weeks. The petition was, thereafter adjourned from time to time and on behalf of the respondent authority, one Mr. K.N. Sharma, Ex-Commissioner for the City of Surat has filed the affidavit in reply which is on the record of this petition. 2. The facts of the case are that, an order of detention came to be passed by the Commissioner of Police, Surat City on 24.7.2000 on the ground that about nine offences are registered against the petitioner involving him in the offences punishable under section 379, 114, 392, 506(1) of the Indian Penal Code and section 135 of the Bombay Police Act. The detaining authority recorded subjective satisfaction about the petitioner being a dangerous person as defined under section 2(c) of the PASA Act. The statements of the witnesses whose identity has not been disclosed in exercise of privilege under section 9(2) of the PASA Act, have also been considered by the detaining authority and he, therefore, ultimately came to the conclusion that there is no other remedy but to detain the petitioner under PASA to prevent him from pursuing his illegal and anti social activities. 3. The petitioner has challenged the impugned order of detention on various grounds raised in the petition. However, during the course of hearing of the present petition, Mr. Patel, the learned advocate for the petitioner has submitted that there is non application of mind by the detaining authority on the question of considering the possibility of cancellation of bail in the event the petitioner is released on bail. He has further submitted that the petitioner was, in fact, in judicial custody at the time when the impugned order of detention came to be passed and, therefore, the detaining authority was having a better option of opposing the grant of bail and the second option of getting the bail cancelled, if at all granted. This aspect has not been considered by the detaining authority while considering the lesser drastic remedy. Mr. Patel, learned advocate appearing for the petitioner herein has confined his arguments to this aspect and has further submitted that in view of the decision taken by a Division Bench of this Court in Letters Patent Appeal No. 1056 of 1999 in Special Civil Application No. 8650 of 1998 on 15.9.1999, there is gross non application of mind on the part of the detaining authority. In that case, the detenues were on bail and the question of getting the bail cancelled was not considered by the detaining authority and the Court held that there is non application of mind. According to Mr. Patel, learned advocate for the petitioner detenu, the case of the petitioner stands on a better footing since the detenu was in judicial custody when the impugned order of detention was passed and, therefore, the authority ought to have considered the possibility of resorting to the remedy of opposing the grant of bail or in event it is granted, of getting the bail cancelled, which has not been done by the detaining authority and, therefore, this petition may be allowed. 4. Mr. D.P. Joshi, the learned Asstt. G.P. appearing for the respondent authority has opposed the present petition. According to him, the decision of this court in the case of Mamad Abbas Jasraya v/s. Additional Chief Secretary, Government of Gujarat, Home Department and others reported in 1994 (2) GLR 1209 will be squarely applicable to the facts of the present case. In the said decision, the detenu was in custody and the Court came to the conclusion that considering the antecedents of the detenu, it was necessary to detain him even while he was in custody. According to Mr. Joshi, in the instant case, the petitioner has been involved in 9 registered offences as per the grounds of detention and has also been involved in the offences which have not been registered, as per the statements of the secret witnesses and, therefore, the impugned order of detention cannot be said to be vitiated on the ground of non application of mind. As regards the contention that the petitioner was in judicial custody at the time of passing the impugned order of detention, he has submitted that the process of opposing the bail application that may be preferred by the detenu and cancellation thereof if granted by the court of competent jurisdiction would be the time consuming process and therefore, the detaining authority was justified in not resorting to that remedy and that would not vitiate the subjective satisfaction recorded by the detaining authority. According to him, the detaining authority has filed the reply in this petition explaining the situation and, therefore, this COurt should not interfere with the impugned order of detention. 5. Having regard to the facts of the case, there is no dispute about the factual aspect that the petitioner is involved in 9 offences involving him in offences as aforesaid punishable under section 379, 114, 506 etc. of the Indian Penal Code. It is also not in dispute that when the impugned order of detention was passed, the petitioner was in judicial custody. In the grounds of detention the detaining authority has considered that in connection with the offences registered against him, the petitioner is in judicial custody for the present and, therefore, at any time, may move the bail application in connection with all the said offences and may get himself released on bail and may continue his illegal anti social activities. The detaining authority has also not considered that the proceedings under section 437(5) for cancellation of bail could be taken against the petitioner in the event the petitioner is released on bail. According to my view, non consideration of the lesser drastic remedy namely opposing bail application that may be preferred by the petitioner and also for cancellation of bail in the event the bail is granted alone has vitiated the subjective satisfaction recorded by the detaining authority. 6. It is true that this Court, in the case of Mamad Abas Jasraya (supra), this Court has observed as under: "Now, taking this ratio of the judgment and applying to the facts of the present case, it is clear from the grounds of detention itself that the detaining authority was aware of the fact that the petitioners were in custody. Further, the detaining authority was also aware of the fact that previously, the petitioners had made frequent applications for bail in the lower court and further looking to the nature of the antecedent activity namely illegal importing of such huge quantity of contraband gold would clearly indicate that they would certainly make applications for bail to the higher courts and after their release, they would engage in any such activities and, therefore, it was necessary to detain the petitioners in order to prevent them from engaging in such activities. " But, at the same time, in a more recent judgment relied upon by Mr. Patel in Letters Patent Appeal Appeal No. 1056 of 1999 in Special Civil Application No. 8650 of 1998 dated 15.9.1999, in case of Yunusbhai Hasanbhai Ghanchi versus District Magistrate, this court, after considering the decision of the division bench of this Court in case of Zubedabibi Rasidkhan Pathan v/s. State of Gujarat and others reported in 36(2) GLR 1134, came to the conclusion that the detaining authority has to consider the question of cancellation of bail. In that case, the detenu was on bail and the authority has not considered the possibility of getting the bail cancelled and the court has, therefore, held that there is non application of mind by the detaining authority. In the instant case, the detenu is on better footing. He was in judicial custody at the time when the impugned order of detention came to be passed. Therefore, the detaining authority could have considered the remedy of opposing bail application before the court and if granted, thereafter, there was an option of having resort to section 437 (5) of the Code of Criminal Procedure which too has not been taken into consideration. From the bare reading of the grounds of detention communicated to the detenu under section 9(1) of the PASA Act, it does not appear that the detaining authority has taken into consideration that the bail application, if preferred by the petitioner, can be opposed. The detaining authority therefore could and should have considered the question of possibility of opposing the bail application, if it is preferred by the petitioner before the Magisterial Court and ought to have considered the possibility of non grant of bail. The detaining authority ought to have considered a further possibility of getting the bail cancelled in the event the court did not accept the opposition to the grant of bail. If the detention order is seen alongwith the grounds of detention, it is amply clear that these material aspects have not been considered by the detaining authority. This is, therefore, a case of clear non application of mind on this important and vital aspect and, therefore, the subjective satisfaction would stand vitiated. On this ground alone, the petition deserves to be allowed. For the reasons recorded hereinabove, the petition succeeds and the same is allowed. The order of detention dated 24.7.2000 is vitiated and resulted to quash and set aside. The detenu Dipak Manga Maru who has been detained at District Jail, Junagadh be set at liberty forthwith if he is not required in any other case. Rule is made absolute accordingly. No order as to costs. Direct Service is Permitted. 25.4.2001. (H.K. Rathod,J.) Vyas