IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1047 of 2001 in SPECIAL CIVIL APPLICATIONNo 1871 of 2001 For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 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 -------------------------------------------------------------- BHANUBEN W/O AMRUTBHAI NARANBHAI PATEL Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: Shri H.M. Mehta, Senior Counsel with Ms.D.R. KACHHAVAH for the appellant. Shri K.T. Dave, ASSTT GOVERNMENT PLEADER for the respondents. -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE RAVI R.TRIPATHI Date of decision: / /200 C.A.V. JUDGEMENT (Per : MR.JUSTICE RAVI R.TRIPATHI) The present Letters Patent Appeal is filed against the judgement and order dated 6.9.2001 passed by the learned Single Judge whereby the petition was rejected and the rule was discharged. 2. The petition was filed under Article 226 of the Constitution of India by the petitioner/ detenu, challenging the order of detention dated 20.1.2001 issued by the Commissioner of Police, Surat City, in exercise of powers conferred upon him under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act"). The petitioner prayed for a writ of habeas corpus or any other appropriate writ quashing and setting aside the impugned order of detention. 3. The order of detention was issued on the ground that the petitioner is a bootlegger within the meaning of section 2(b) of the Act and that the petitioner is involved in five cases under the Prohibition Act, which are registered against the petitioner at various Police Stations of Surat City. Statements of two independent witnesses were also recorded which inter alia reveal that the petitioner is a bootlegger and indulges in bootlegging activity which is detrimental to maintenance of public health which in turn poses threat to maintenance of public order. Therefore, it had become necessary for the detaining authority to detain the petitioner under the Act. 4. The petitioner challenged the order of detention mainly on the ground that the relevant papers including reports of Chemical Analyser and the papers relating to release of the petitioner on bail have not been supplied to the petitioner which had resulted in violation of the right of the petitioner to make an effective representation as guaranteed under Article 22 (5) of the Constitution of India. The petitioner also contended that the privilege claimed under section 9(2) of the Act is not genuine and therefore, the continued detention of the petitioner is illegal. The petitioner had taken all other contentions, such as, the State Government had not made reference with all relevant materials and documents relating to the order of detention against the petitioner to the Advisory Board in time as stipulated under the Act and thus, the mandatory provision has not been complied with, therefore, the continued detention of the petitioner has become illegal. It was also contended by the petitioner that the petitioner had sent representation dated 6.2.2001 to the detaining authority with a request to forward it to the State Government for consideration, that there was delay in considering the said representation by the authorities and thereby there is violation of valuable right of the petitioner guaranteed under Article 22(5) of the Constitution of India. 5. The petition was contested by the respondents by filing two separate affidavits; one by Shri J.R. Rajput, Under Secretary, Home Department, Gujarat State, and the other by Shri V.K. Gupta, Commissioner of Police, Surat City, Surat. 6. The learned Judge considered the submissions made on behalf of the petitioner and the submissions made by the learned Assistant Government Pleader Shri K.T. Dave on behalf of the respondent authorities. After taking into consideration various authorities relied upon by Ms.Kachhavah learned advocate for the petitioner and also the authorities relied upon by the learned Assistant Govt. Pleader, Shri K.T. Dave, the learned Single Judge decided the contention of non supply of the Chemical Analyser's report to the detenu by observing in para 16 of the judgement as under : "16. On this point there is catena of decisions of this Court wherein on similar fact situation this Court has held that irrespective of the fact whether the detaining authority has considered that C.A. report or papers of bail order, non supply of those documents vitiates the order of detention and, therefore, on this ground, I have not been able to persuade myself to agree with the submission advanced by Mr.Dave. According to me, those documents, more particularly the C.A. reports, are very vital documents as on the basis of the said report it can be examined whether the samples collected by the investigating officer while registering complaints under the Prohibition Act in fact contained alcohol or not and if ultimately the C.A. reports reveal that the samples collected do not contain alcohol in that case it can be said that the petitioner is not involved in prohibition cases and is not a bootlegger within the meaning of section 2 (b) of the Act. Therefore, in my view, non supply of such documents irrespective of the fact whether they are considered at the time of passing the order of detention or not, are vital documents and non supply of such documents vitiates the continued detention of the detenu." (emphasis supplied) 7. The learned Judge while dealing with the submissions made by the learned Assistant Government Pleader about severability of the grounds under section 6 of the Act considered various contentions raised by the learned advocate for the petitioner in para 17 onwards. The submission of the learned Assistant Government Pleader was that the detaining authority has passed order of detention on the basis of the statements of the two witnesses also and they form separate grounds. Unless the petitioner satisfies that detention of the petitioner is vitiated on each of the grounds as the petitioner's right to make effective representation is violated, the order of detention cannot be said to be bad in law. The attempt on the part of the learned advocate for the petitioner was that five offences were registered against the petitioner under the Prohibition Act and the statements of the two witnesses form a composite ground and the question of 'severability of ground' as provided under section 6 of the Act does not arise. Learned advocate for the petitioner relied upon the judgement of the Honourable Apex Court in the case of A. Sowkath Ali v. Union of India and others, reported in AIR 2000 SC 2662. The learned Judge after dealing with the contentions raised by both the sides was pleased to hold in para 26 as under : "26. In view of the ratio laid down in the judgment of the Full Bench of this Court, there is no manner of doubt that the provisions of section 6 of the Act can be invoked if there is more than one ground of detention and if the petitioner fails to establish how each ground vitiates the order of detention and the detention order should be held invalid." 8. The final conclusions recorded by the learned Single Judge in para 32 read as under: "32. On overall view of the matter, so far as the five cases registered against the petitioner under the Prohibition Act are concerned, the petitioner's right to make effective representation on account of non supply of the documents like C.A. reports and application of bail and its order which are vital documents, is violated and therefore, it vitiates the continued detention of the detenu. However, so far as other ground of detention, that is, statements of two witnesses are concerned, the privilege is rightly claimed and grounds of detention are severable and the learned advocate for the petitioner is unable to persuade this Court how this ground is vague. Therefore, order of detention is sustainable." 9. Learned counsel Shri H.M. Mehta appearing for the appellant- original petitioner with the learned advocate Ms.Kacchavah submitted that section 6 of the Act is wrongly applied to the facts of the case. The ground of detention formed one composite ground and the same is vitiated as the petitioner's right to make representation under Article 22(5) of the Constitution of India is violated. On that ground alone the continued detention of the petitioner should have been declared illegal and the petitioner should have been set at liberty forthwith. Perusal of sec.6 of the Act is necessary at this stage. Section 6 of the Act reads as under : "6. Grounds of detention severable -- Where a person has been detained in pursuance of an order of detention under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each ground and accordingly -- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -- (i) vague, (ii) non existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or the officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or the officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds." 10. Shri Mehta, learned counsel submitted that clause (a) of section 6 of the Act provides that an order which was made on two or more grounds is deemed to be not invalid even if one or some of the grounds of the invalidity mentioned in the said clause, namely, grounds being vague, non existent, not relevant, not connected or not proximately connected with such person, or invalid for any other reason whatsoever. Shri Mehta, the learned counsel submitted that this will mean that even if the order based on the ground which suffers from any of the aforesaid invalidity, the order is given a 'deeming validity'. But that does not mean that right of the petitioner to make representation flowing from Article 22(5) of the Constitution of India can be waived or given a go by. Shri Mehta, learned counsel submitted with all vehemence at his command that the learned Single Judge has erred in not considering the fact of denial of opportunity to the detenu to persuade the detaining authority to come to the conclusion that her continued detention is not warranted in view of the fact that out of the so called seven grounds, namely, five cases and two statements, five cases do not survive on account of 'non supply of the Chemical Analyser's report'. Now what remains against the petitioner-detenu is only the two statements. Shri Mehta, learned counsel strenuously submitted that had the detenu given an opportunity to persuade the detaining authority, the detenu could have persuaded the authority that in absence of five cases registered against the detenu, the continued detention of the petitioner is not warranted on the basis of mere two statements. 11. Shri Mehta, learned counsel appearing for the appellant- detenu submitted in the alternative that in the present case though the authorities have filed an affidavit, said affidavit is silent on the question of severability under section 6 of the Act. Shri Mehta submitted that in that fact situation the judgement of the Apex Court in the case of A. Sowkath Ali v. Union of India and others (supra) [AIR 2000 SC 2662] is squarely applicable to the facts of the present case. Shri Mehta submitted that the learned Single Judge has distinguished the said case on the ground that, ".. .. in that the order of detention was passed on composite ground and there the State had not filed any counter affidavit raising question of severability under section 5A of the COFEPOSA and in that circumstances the Supreme Court has held that question of severability would not arise." 12. Shri Mehta, learned counsel for the appellant/ original petitioner also relied upon the judgement of this Court in the matter between Israil alias Israr Pahelvan Nazirahmed Shaikh v. State of Gujarat, reported in 2001 (1) GLR 306, wherein the decision of the Apex Court in the matter of A. Sowkath Ali v. Union of India and others (supra) is referred to in para 77. Mr.Mehta submitted that the detaining authority has taken into consideration all the facts together. Shri Mehta submitted that from the reading of page 24 of the petition it is clear that the order of detention is passed on one composite ground and therefore, the detention order must fail when the petitioner detenu is able to show that her right of making representation is violated on account of non supply of Chemical Analyser's report or withholding of the names of the associates of the detenu or the persons who came forward to rescue the witnesses whose statements are recorded. 13. Shri Mehta, learned counsel for the appellant submitted that the privilege claimed under section 9(2) of the Act whereby the names of witnesses, whose statements were recorded are not supplied. Shri Mehta, learned counsel submitted that the privilege claimed under section 9(2) is wrongly claimed by the detaining authority. Besides the challenge to improperly claiming privilege, Shri Mehta also contended that the right of making representation is also affected by non supply of the names of the associates of the petitioner and non supply of names of rescuers. Shri Mehta stated that the statements recorded and relied upon by the detaining authority wherein in the first statement the incident of 22.11.2000 is referred to. In that statement it is stated that the petitioner was along with her four associates had gone to the witness, whose statement is recorded. It is further recorded that when the associates of the petitioner started beating the witness, 3 - 4 persons had tried to rescue the witnesses. Similarly, in the second statement an incident of 10.12.2000 is recorded wherein also it is stated that the petitioner along with her four associates had gone to the place of business of the witness and while two of the associates of the petitioner dragged the witness on the road and started beating four persons who were acquaintances of the witness had come forward from the crowd to rescue the witness. Shri Mehta submitted that assuming without admitting that the privilege claimed against disclosure of the names of the witnesses is valid, the appellant's right of making representation is violated on account of non supply of the details of the associates of the petitioner and the persons who had come forward to rescue the witnesses, whose statements are recorded. 14. Shri Mehta, learned counsel appearing for the appellant submitted that this Court (Coram: A.M. Kapadia, J.) in Special Civil Application No.3734 of 2001 vide order dated 23.10.2001 held that the Chemical Analyser's report is a vital document as on the basis of the said report it can be examined whether the samples collected by the investigating officer while registering complaints under the Prohibition Act in fact contained alcohol or not and if ultimately the Chemical Analyser's report reveals that the samples collected do not contain alcohol, in that case it can be said that the petitioner is not involved in prohibition cases and is not a bootlegger within the meaning of section 2(b) of the Act. In the present case also the learned Judge has held in para 16 as under: ".. .. Therefore, in my view, non supply of such documents irrespective of the fact whether they are considered at the time of passing the order of detention or not, are vital documents and non supply of such documents vitiates the continued detention of the detenu." Thus, on this point the learned Single Judge has held in favour of the present appellant- original petitioner. 15. Shri Mehta, learned counsel for the appellant also relied upon a judgement of this Court (Coram : Ms.R.M. Doshit, J.) in the matter of Ambalal Chhaganlal Rawal v. Commissioner of Police rendered in Special Civil Application No.10687 of 1998 dated 9.8.1999, wherein the learned Judge was pleased to hold that non supply of Chemical Analyser's report had resulted into deprivation of the constitutional right of the petitioner to make effective representation. 16. Shri Mehta, learned counsel for the appellant also relied upon the judgement of the Bombay High Court in the matter between Chandra Shekhar Ojha v. A.K. Karnik and others, reported in 1982 Cri. L.J. 1642. Shri Mehta submitted that the Bombay High Court was considering the provisions of sections 3 and 5A of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as "COFEPOSA Act"). Shri Mehta submitted that in the case before the Bombay High Court, copies of judgements which were relied upon by the detaining authority while passing the detention order were supplied to the detenu along with the order of detention. But due care and precaution were not taken to supply legible copies of documents. Some of the copies were either blank or wholly illegible. In such circumstances it was contended that the detention was void ab initio and there is no question of sustaining such void order under section 5A of COFEPASA in respect of those grounds, which were based on illegible documents. It was also contended that non supply of the grounds of detention or relevant documents had the effect of invalidating the detention itself and in such a case the detention could not be said to be in accordance with the procedure prescribed by law. When the detention itself was not in accordance with the procedure prescribed by law, such void order of detention cannot be supported by taking recourse to section 5A of COFEPOSA Act. It was also contended that an order which was void ab initio could not be validated or supported by taking recourse to section 5A of COFEPOSA Act. It was argued that section 5A of COFEPOSA Act will come into operation only after communication of the grounds and following constitutional safeguards. It was also urged that supply of relevant documents to enable the detenu to make effective representation is a constitutional safeguard. Shri Mehta submitted that in the present case also on account of non supply of the Chemical Analyser's report, right of the detenu to make representation under Article 22(5) of the Constitution of India is violated and therefore, by applying the ratio of the Bombay High Court's judgement in the case of Chandra Shekhar Ojha (supra) the continued detention is required to be quashed and set aside holding that the right of the original petitioner-appellant herein is violated. 17. Shri H.M. Mehta, learned counsel appearing for the appellant submitted that when the Chemical Analyser's report is not supplied, there is no communication of ground and in such situation, even section 6 of the Act cannot save such an order. In support of this contention, Shri Mehta relied upon the judgement of the Division Bench of this Court in the matter of Vikramsinh Pravinsinh Rana v. State of Gujarat and another, reported in 1988 (2) GLR 1336. Shri Mehta relied upon the following portion of para 3 of the judgement: ".. .. It is difficult to accept the submission of Mr.G.D. Bhatt, the learned Addl. Public Prosecutor that section 6 of the PASA Act can be pressed into service and the orders of detention can be sustained on other grounds. We find it difficult to agree with Mr.Bhatt that sec.6 of the PASA Act can be pressed into service in a case like the present one. Section 6 of the PASA Act comes into play only when the grounds are communicated but one or more of the grounds are found to be vague, non existent, etc. When there is non communication of some of the grounds to the detenue, the question of invoking of the provisions of sec.6 of the PASA Act does not arise. When some of the grounds are not communicated there is violation of Art.22(5) of the Constitution of India and, therefore, the detention becomes unconstitutional. We are supported with the view which we are inclined to take by the decision of the Division Bench of this Court rendered in (Bhimdevsinh Dilavarsinh Darbar v. State) Special Criminal Application No.186 of 1987 (Coram D.H. Shukla & P.M. Chauhan, JJ.) on 5.8.1987. In that case also it was a question of non communication of the grounds and the submission made on behalf of the State based on sec.6 of the PASA Act was rejected. The Division Bench of this Court referred to a judgement of the Division Bench of the Bombay High Court in the case of Chandra Shekhar Ojha v. A.K. Karnik & others, reported in 1982 Cri. L.J. 1642 where such a contenting was raised on behalf of the State and rejected. The Division Bench of the Bombay High Court in that case relied upon the decision of the Supreme Court in the case of Kamla Kanhaiyalal Khushalani v. State of Maharashtra, reported in AIR 1981 SC 814 where the Supreme Court held that the documents and the material relied upon in the order of detention from an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention and if the documents and material are even supplied late, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. The Bombay High Court observed that before the order of detention can be supported the constitutional safeguards must be strictly observed. In the case of Bhupinder Singh v. Union of India & others, 1987 (2) SCC 234 the detention was set aside on the ground that the right of making representation guaranteed under Art.22 of the Constitution of India was denied." 18. Shri K.T. Dave, learned Assistant Government Pleader appearing for the respondents defended the judgement of the learned Single Judge and order of detention. Shri Dave submitted that so far as non supply of Chemical Analyser's report is concerned, the learned Judge has erred in observing that, ".. .. irrespective of the fact whether they are considered at the time of passing the order of detention or not, .. .." Shri K.T. Dave, learned Assistant Government Pleader submitted that so far as the observation to the effect that the Chemical Analyser's report is a vital document, there cannot be any dispute. So far as the observation to the effect that non supply of vital documents vitiates the continued detention, there cannot be any dispute. But the observation that, ".. .. irrespective of the fact whether they are considered at the time of passing the order of detention or not", the learned Judge has erred and to that extent said observation is required to be quashed and set aside. Shri Dave submitted that this Court in judgement and order rendered in the matter of Ambalal Chhaganlal Rawal in Special Civil Application No.10687 of 1998 (supra) has rightly observed that, ".. .. In the present case, as stated hereinabove, it is not disputed that the petitioner has not been furnished with the reports of the chemical examination, nor it is contended that such reports were not available on the date of the impugned order. It must, therefore, be held that the petitioner is deprived of his Constitutional right to make an effective representation." (emphasis