IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7598 of 2001 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 -------------------------------------------------------------- PRAKASH ARJUNBHAI MARATHA (CHHARA) Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7598 of 2001 MR ANIL S DAVE for Petitioner No. 1 MR KAMEN N SHUKLA for Petitioner No. 1 MR D.P. JOSHI, AGP for State. -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE Date of decision: 16/01/2002 ORAL JUDGEMENT The petitioner came to be detained by virtue of an order dated 11.8.2001 passed by the Commissioner of Police, Ahmedabad City in exercise of power under Section 3 of the PASA Act. The petitioner seeks to challenge the said order by this petition under Article 226 of the of Constitution of India. 2. The grounds of detention indicate that the petitioner has been branded as a dangerous person. The detaining authority has considered two registered offences against the detenu under Chapter XVI and XVII of the Indian Penal Code. The detaining authority has also considered statements of two anonymous witnesses recorded on 7.8.2001 and verified on 9.8.2001 and have come to the conclusion that the activity of the detenu is anti-social and detrimental to public order. 3. Learned Advocate for the petitioner Mr. Shukla restricted his arguments to the fact that there is nothing to indicate that there was disturbance to public order when the registered offences were committed. So far as statements are concerned, he submitted that there is no material to indicate that the power was properly exercised by the detaining authority under Section 9(2) of the PASA Act after undertaking due enquiry and verification regarding genuineness of the fear expressed by the witnesses and the need for use of power under Section 9(2) of the PASA Act, in comparison to the right of the detenu envisaged under Art. 22 of the Constitution of India. He has placed reliance on the decision of this Court in Bai Amina Vs. State of Gujarat, reported in 22 GLR 1186 and subsequent judgements wherein the said decision has been followed. 4. Learned AGP Mr. D.P. Joshi has opposed this petition. 5. Having regard to the rival side contentions raised before this Court, there is no dispute about the fact that the two offences registered against detenu relate to theft and robbery respectively. There is no material to indicate that when the incident occured there was any disturbance to public order. 5.1 So far as statements are concerned, they have been verified by the detaining authority on 9.8.2001. There is nothing to indicate that the detaining authority examined the allegations made by the anonymous witnesses while considering social background of the detenu and the witnesses' anticedents and other relevant aspects to ensure that the fear expressed by the witnesses is genuine and not imaginery or by way of a camaflague used to cover up his own activities. The use of power under Section 9(2) of the PASA Act therefore cannot be considered as based on cogent material. This would infringe the right of the detenu of making an effective representation and vitiate the detention. The petition therefore deserves to be allowed. 6. The petition is therefore, allowed. Order of detention dated 11th August, 2001 passed by the Commissioner of Police, Ahmedabad City against the detenu is quashed and set aside. Detenu Prakash Arjunbhai Maratha (Chhara) be released from detention forthwith, if not required in any other case. Rule made absolute. No costs. Direct service permitted. (A.L.Dave,J.) */Mohandas