IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2300 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE H.H.MEHTA ============================================================ 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 : 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 -------------------------------------------------------------- ISRAIL & ISRAR PAHELVAN NAZIRAHMED SHAIKH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR HR PRAJAPATI for Petitioner MR UR BHATT AGP for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE H.H.MEHTA Date of decision: 19/10/2000 CAV JUDGEMENT The petitioner, who is a detenu, has, by filing this writ petition under Article 226 of the Constitution of India, challenged the legality and validity of an order of detention dt. 19th July, 1999 (Annexure : A) which came to be passed by respondent no.2 who is a Commissioner of Police, Ahmedabad, in exercise of his powers conferred upon him under Sec. 3(2) of the Gujarat Prevention of Antisocial Activities Act, 1985 (Gujarat Act No.16 of 1985 ) (same will be referred to hereinafter as "the Act" for sake of brevity and convenience). 2. The petitioner has challenged the said order of detention on the grounds that it - (i) is illegal; (ii) is invalid; (iii) is arbitrary, void ab initio; (iv) suffers from total non-application of mind; and (v) is in violation of provisions of Articles 14-19 -21 and 22 of the Constitution of India. 3. As per papers of grounds of detention supplied to the detenu, it is the case of the respondent no.2 i.e. the Commissioner of Police, Ahmedabad ( who will be referred to as the Detaining Authority); that the detenu is a bootlegger within the meaning of Sec.2(b) of the Act and the activities of the detenu are prejudicial to the maintenance of public order. Before passing an order of detention with respect to detenu, the detaining authority for forming his subjective satisfaction placed reliance on following facts :- (A) One prohibition case has been registered against the detenu and five other persons. As per case of the detaining authority, one Shri G.H.Khan, P.S.I. D.C.B. Ahmedabad City lodged his complaint against in all six persons in D.C.B.Police Station at 8-15 hrs., on 20/5/1999. That complaint had come to be registered as CR.No. Prohibition 5014/99. In Column No.5 of said F.I.R., name of present detenu has been referred to as accused No.4 in that case. That F.I.R. has been lodged for offences punishable under Secs. 66(1)(b), 65(a), 65(e), 81 and 116-B of the Bombay Prohibition Act, 1949. As per that F.I.R. it was the case of the complainant that all the six accused (including detenu) whose names have been referred to in Column No.5 of F.I.R.) by abetting each other imported illicit liquor under the guise that it is a foreign make Beer in quantity of 344 bottles, total worth Rs. 54,800/- and also by buying the same and trying to export by selling the same in contravention of the provisions of Bombay Prohibition Act, 1949, and further that all the said six accused (including detenu) were found with possession of said 344 bottles of illicit liquor by transporting that bottles in one Auto Rickshaw bearing No. GRX 7858 which was being driven by Salimmiya Kalumiya Shaikh (accused no.2 in that F.I.R.). It is the case of the complainant of that F.I.R. that when he and other Police Officers intercepted the said Rickshaw at about 3-00 a.m. on 20/5/1999, the occupiers in that Rickshaw got down from the Rickshaw and ran away and disappeared by taking advantage of darkness of the night and on checking that Rickshaw, aforesaid 344 bottles were found in the Rickshaw. The Police Officers tried to chase and catch hold the accused but they ran way from the Rickshaw. They could not be arrested then and there. One of that persons was hiding himself behind the Rickshaw. He was caught hold and it was found that he was Abdul Rafiq alias Rasik Abdul Raheman (accused no.1 of that F.I.R.) (B) One Shri V.B.Raval, Police Inspector, P.C.B. Ahmedabad recorded statements of two witnesses -One on 16th July, 1999 and another on 18th July, 1999. The detaining authority has not disclosed an identity of said two witnesses by claiming a privilege under Sec.9(2) of the Act on the ground that names and addresses of said two witnesses are not disclosed as he considered it to do so necessary in the public interest. The detaining authority verified said statements of two witnesses whose identity has not been disclosed on 19th July, 1999, and on that very day i.e. on 19/7/1999, the detaining authority passed an order of detention dt. 19/7/1999 which is at Annexure A appended with main petition. It is that order which is challenged in this writ petition. 3.1 As per the case of respondent no.2, i.e. the detaining authority present detenu was arrested in one another Prohibition case being CR.No. 193/98 on or about 31/1/2000 and since then he was in judicial custody, and therefore, the order of detention dt. 19/7/1999 which is challenged in this writ petition was served upon the detenu on 4/2/2000. 3.2 On the date of actual service of order of detention on the detenu, he was given papers relating to grounds of detention. That papers of grounds of detention are produced in one compilation which is at Annexure B. That compilation is consisting of Pages which run from Page Nos. 1 to 48. As per that papers of grounds of detention, one order of detention under Sec.3(2) of the Act had already been passed against the present detenu on 19/2/1999 and in that earlier order of detention, it was alleged by the detaining authority that detenu (present petitioner) was a bootlegger within the meaning of Sec.2(b) of the Act, and was also a dangerous person within the meaning of Sec.2(c) of the Act. That order dated 19/2/1999 and its related papers are at Pages 33 to 46 in Annexure B appended with present writ petition. That earlier order dt. 19/2/1999 passed by respondent no.2 was based on about 19 prohibition cases under the Bombay Prohibition Act, 1949 and two cases under the Indian Penal Code registered in Gomtipur Police Station. Papers with regard to grounds of order of detention and that earlier case are at Pages 37 to 46. That earlier order dt. 19/2/1999 will be referred to hereinafter as an earlier order of detention for brevity. That earlier order of detention was challenged by the petitioner by filing a writ petition in this Court. That writ petition was registered as Special Civil Application No. 1913 of 1999 and it was finally decided by this Court (Coram: D.C.Srivastava, J.) on 24/4/1999. By its Judgment dt. 24/4/1999, that earlier order of detention was quashed and the petitioner who is present detenu in that writ petition, was released. 3.3 The petitioner/detenu has presented this present writ petition i.e. Special Civil Application No.2300 of 2000 through his learned Advocate Shri H.R.Prajapati on 28th March, 2000. 3.4 (a) As it was not filed supported with affidavit one Shri Akaram Nazir Ahmad Shaikh who is brother of detenu has filed his affidavit in support of this writ petition on 13/6/2000 (Page 22-A); (b) respondent no.1 has filed affidavit-in-reply of its Under Secretary, Home Department, Sachivalaya, Gandhinagar on 19/6/2000 (Page 33 to 36); (c) Respondent no.2 who is the detaining authority has filed his affidavit-in-reply on 13th June, 2000 (Pages 23 to 32); (d) brother of petitioner/detenu who has filed his affidavit on 13/6/2000 has also filed his affidavit-in-rejoinder on 20/6/2000 (Page 37 to 39) along with one letter dt. 11/4/2000 of the respondent no.2 addressed to detenu (Annexure I) (Page 40). (C) During the pendency of this present petition, the petitioner filed one Civil Application No. 6589 of 2000 and sought a permission of this Court to amend the main writ petition by way of adding one ground No. " 4(O) " just below Ground "4(N) " under head "Grounds". That new ground "4(O) " (slip age 10-A) has been affixed on Page 11 of this writ petition on 9/8/2000. 5. In view of aforesaid newly added ground 4(O) in the main writ petition in the main writ petition, the respondent no.2 has filed his additional affidavit-in-reply to aforesaid newly added ground 4(O) vide order dt. 9/8/2000 passed in Civil Application No. No. 6589 of 2000. The respondent no.2 i.e. detaining authority has filed his Additional affidavit-in-reply on 28th August, 2000. (Page : 41 to 44). In reply to affidavit-in-rejoinder dt. 20th June, 2000 filed by brother of the detenu, the respondent no.2 i.e. detaining authority has also filed his affidavit-in-sur-rejoinder on 11th September, 2000.(Page :45 to 48) 5.1 During the pendency of this Writ Petition, petitioner, by filing a Civil Application No. 8150 of 2000 on 07-09-2000, prayed for a permission to amend main writ petition by inserting new Ground "4(P)" after ground "4(0)", but subsequently, on 11-09-2000 he did not press that Civil Application No. 8150 of 2000 and withdrew it, unconditionally. 6. I have heard Shri H.R.Prajapati, the learned advocate for the petitioner/detenu and Shri U.R.Bhatt, learned Assistant Government Pleader for all respondents in detail at length. 7. Before discussing the rival contentions of both the parties, it would be in the interest of justice and in the fitness of things to know certain following admitted facts which are summarised in chronological orders of dates. (i) During the period from 28/7/1997 to 23/2/1998 about nineteen Prohibition cases and two Indian Penal Code Cases were lodged against the present petitioner. In connection with that Criminal Cases and also in connection with statements of unnamed witnesses, the then detaining authority passed an earlier order of detention on 19th February, 1999. In connection with that earlier order of detention, the brother of detenu had made a representation on 27th February, 1999. That earlier order of detention was challenged by the present petitioner by filing Special Civil Application No. 1913 of 1999 in this Court and it was finally decided in favour of petitioner on 24/4/1999. (ii) Before order of detention dt. 19/7/1999 was actually served upon the detenu, two more cases were registered against him and other accused. One such case was registered as CR.No. I 222/99 in Sarkhej Police Station on 12/11/1999. That first case was registered for offences punishable under Secs. 141-148149-323-325-186- 333-504 of Indian Penal Code and also under Sec.135(1) of the Bombay Police Act. Another case came to be registered as CR.No.5007/2000 in Vatva Police Station on 6/1/2000 and that case was registered for offences punishable under Secs.66(1)(b), 65(a), 65(e), 81 and 116B of the Bombay Prohibition Act. (iii) One F.I.R. was lodged by Shri G.H.Khan, P.S.I. District Crime Branch, Ahmedabad on 20/5/1999 at 8-15 a.m.. in D.C.B.Police Station and that F.I.R. came to be registered as Crime Registration Prohibition No. 5014/99 and that F.I.R. has been referred to in papers of grounds of detention (Annexure : B). F.I.R. is at Page 1 of that bunch of papers. One P.S.I. D.C.B.Ahmedabad City recorded statements of two witnesses whose identity has not been disclosed by the detaining authority by claiming privilege under Sec.9(2) of the Act. Statement of such first witness was recorded on 16/7/1999, and statement of such second witness was recorded on 18/7/1999. The detaining authority verified that two statements on 19/7/2000. As per the case of the detaining authority, the first unnamed witness had narrated an incident of 20/6/1999, while the second witness had narrated an incident of 2/7/1999. (iv) One case bearing CR.No. Prohibition 193/98 under the Bombay Prohibition Act had already been registered in Prohibition Station, (North) and in that case, petitioner was arrested on 31/1/2000, and was sent to Judicial Custody. While petitioner/detenu was in judicial custody in connection with aforesaid CR.No.193/98 registered in Prohibition Station, (North) since 31/1/2000, the order of detention dt. 19/7/1999 which is challenged in this writ petition was served upon him when he was detained in Jail. He is placed in Jail at Jamnagar, under the custody of Respondent No.3. (v) Advocate of detenu made a representation addressed to the Chief Minister, Gujarat State, Gandhinagar on or about 9/3/2000. That representation is produced as Annexure: C. It was received by the Office of Chief Minister on 10/3/2000. That representation is alleged to have been rejected on 15/3/2000 as per affidavit filed by the Under Secretary, Home Department, Sachivalaya, Gandhinagar for and on behalf of respondent no.1 -State of Gujarat. The decision with regard to representation is alleged to have been communicated to the detenu, vide letter dated 15/3/2000 through Jail authority. (vi) As per affidavit-in-sur-rejoinder dt. 11th September, 2000 filed by the detaining authority in case relating to CR.No. Prohibition 5014/99 of which a reference is there in papers of grounds of detention, the Investigating Officer completed the investigation and filed a chargesheet against the accused including the detenu, on 27/3/2000. (vii) Detaining authority received an information from the Office of the Chief Minister, Gujarat State, Sachivalaya, Gandhinagar on or about 6/4/2000. (viii) The detaining authority addressed a letter to the detenu on 11/4/2000 (Annexure : I) (Page : 40). 6. In the matter of this writ petition, the learned advocate for the detenu first argued mainly on the privilege claimed by the detaining authority under Sec.9(2) of the Act by citing a decision rendered by this Court (Coram: M.R.Calla, J.) in case of MOHMAD SARIF @ KALIO NURMOHMAD SARINBAPU SHAIKH Vs. COMMISSIONER OF POLICE, AHMEDABAD AND OTHERS, reported in 1997 (1) 19(1) G.L.H. 1017. Thereafter, Mr. Bhatt, the learned AGP argued on behalf of respondents and thereafter in argument-in-re, Shri Prajapati started to argue on points which he did not argue when he opened his arguments in the beginning. At that time, Shri Bhatt, learned AGP for the respondents opposed for arguments being advanced by Shri Prajapati, learned advocate for the petitioner detenu on new points which he did not argue earlier. But with the permission of this Court, Shri Prajapati argued on other points also and Shri Bhatt, learned AGP for the respondents was also given a chance to meet with the arguments of Shri Prajapati which he advanced on some new points. During the course of arguments, Shri Bhatt argued that Shri Prajapati has advanced his case on some new points of which pleadings are not there in the main writ petition. Therefore, on 7/9/2000, Shri Prajapati submitted to this Court that he wanted to file one Civil Application seeking permission to amend the main writ petition for adding additional pleadings. Thereafter Shri H.R.Prajapati filed Civil Application No. 8150 of 2000 and subsequently, during the course of arguments, he withdrew that application on 11th September, 2000, and thereafter, he continued his arguments. 7. At the outset, it would be profitable to mention hereinbelow the legal position with regard to approach of the High Courts while dealing with such type of writ petitions filed under preventive detention. (1) In case of SMT ICCHU DEVI CHORARIA vs. UNION OF INDIA AND OTHERS, reported in AIR 1980 SC Page 1983, wherein it has been observed in Para 3 on Page 1986 as follows:- " The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secure it, protest it and preserve it. The Constitution has, therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards. This Court has also through its judicial pronouncements created various legal bulworks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time. It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention." 8. At the outset, I would like to deal with the arguments of Shri U.R.Bhatt, learned AGP for the respondents which he argued at the fag-end of his arguments. He has argued that such type of writ petitions in which orders of detention are challenged are being dealt with by Hon'ble Supreme Court as Habeas Corpus writ petitions, and further in view of the provisions contained in Chapter 28 (Rules 378 to 386) of the Gujarat High Courts Rules, 1993 ( same will be referred to hereinafter as "the Rules" ), when the present writ petition is filed for issue of a writ of Habeas Corpus, in view of Rule 1 of the said Rules, this writ petition ought to have been placed by the Registry of this High Court before the Division Bench which deals with Habeas Corpus writ petitions. From these arguments, an attempt has been made by Mr. Bhatt, the learned AGP to show that this Court presided over by a Single Judge has no jurisdiction to deal with and decide Habeas Corpus writ petitions. 9. Shri Prajapati has argued that as per Rule 1 of the Rules, all civil and criminal matters can be dealt with and decided by Division Bench of two or more Judges., but to this Rule 1 of the Rules, exception is made in Rule 2 of the Rules, wherein two categories of cases are listed. As per Rule 2, all matters as listed under two Heads (i) Civil and (ii) Criminal, can be dealt with and decided by this Court which is presided over by a Single Judge. Shri Prajapati has drawn my attention to Item No.11 under first head "Civil" in rule (2) of Chapter I of said High Court Rules. This Item No.11 is with regard to matters pertaining to Preventive Detention laws. This Item No.11 has been inserted in the said Rules by High Court Notification No. C.2002/93, dated 5th April, 1995 with effect from 5th April, 1995, and therefore, in view of this newly added Item No.11 under Head " Civil ", in Rule 2 of the Rules, this Court which is presided over by a Single Judge, has every jurisdiction to deal with and decide the writ petitions filed pertaining to the Act. 10. Shri Prajapati has cited an authority of this Court in case of BHANUBHAI NAGJIBHAI PATEL vs. STATE OF GUJARAT, reported in 1996(1) 16(1) G.L.H. 554. In this case, Division Bench of this Court has made it clear that this Court presided over by a Single Judge has every jurisdiction to deal with and decide the writ petitions filed under the said Act. 11. Shri Bhatt has tried to distinguish aforesaid case on the ground that in this cited case, Rules contained in Chapter 17 and Rules contained in Chapter 28 are not discussed and dealt with. He has argued that Chapter 17 of the Rules are made for applications under Art.226-227 - 228 of the Constitution of India for issue of writs or orders under said Articles. He has further argued that Rule 174 is for applications for issue of writs of mandamus, prohibition, quo-warranto, and writs of certiorari. This Rule 174 does not speak anything about a writ of habeas corpus, for which a separate Chapter 28 is there in the said Rules and this Chapter 28 contains rules for issue of writs of habeas corpus under Article 226 of the Constitution of India, and therefore, as per his arguments, writ petition challenging an order of detention is a writ of habeas corpus, as the same being treated by the Hon'ble Supreme Court as habeas corpus petition, and hence it is a writ petition with regard to criminal matter, and therefore, it cannot be said that matter is of a civil nature, and therefore, as argued by Shri Bhatt, this matter can only be dealt with and decided by the Division Bench of the High Court. He has further argued that if according to Item No.11 under Head " Civil " in Rule 2 of the Rules, this type of writ petition is treated as a Civil matter, then strict provisions of pleadings are applicable to this present case. Alternatively, he has argued that if this Court comes to a conclusion that no strict provisions of pleadings are applicable to habeas corpus writ petitions, then it is a criminal matter and it ought to be dealt with and decided by Division Bench. 11.1 Thus, Shri Bhatt has indirectly tried to challenge the decision of Division Bench rendered in case of Bhanubhai Nagjibhai Patel (supra). It may be noted that a writ petition in the case of Bhanubhai Nagjibhai Patel (supra) was formerly filed to challenge an order of detention passed under the Act under Art. 226 of the Constitution of India and lateron the petitioner moved this Court for amendment in Petition, and by amending main writ petition added a relief of issuances of a writ of habeas corpus in his main writ petition, and after making such amendment, it was submitted by the petitioner of that case that this Court which is presiding over by a Single Judge has no jurisdiction to deal with and decide the writ of habeas corpus. Division Bench of this Court dealt with that contention in detail at length and ultimately a request of the petitioner was refused holding that this Court which is presided over by a Single Judge has every jurisdiction to deal with and decide a writ petition challenging an order of detention passed under the Act invoking jurisdiction of this Court under Art.226 of the Constitution of India, and therefore, in view of the above, this Court which is presided over by a Single Judge cannot go beyond what is earlier decided by the Division Bench of this High Court. 12. It may be noted that this type of contention has not been taken by either of respondent nos. 1 and 2 in their respective affidavits-in-reply. Had the respondents taken such disputes with regard to jurisdiction of this Court for hearing and deciding the writ petition, then positively, the petitioner might have filed an affidavit-in-rejoinder