IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 9650 of 1999 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 -------------------------------------------------------------- AJAY HAREKRISHNA DEVNATH BANGALI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: THROUGH JAIL for Petitioner GOVERNMENT PLEADER for Respondent No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE Date of decision: 07/03/2000 ORAL JUDGEMENT 1. The petitioner is a detenu who came to be detained under the provisions of the Gujarat Prevention Anti-Social Activities Act, 1985 ("PASA Act" for short) by virtue of an order passed by Commissioner of Police, Ahmedabad City, Ahmedabad, passed on 25th May, 1999 in exercise of powers under Section 3(1) of the PASA Act. 2. The present petition is registered on basis of an application received from the detenu through jail. Mr. S.C. Patel, learned advocate, has been appointed as advocate for rendering legal aid. He is not present when the matter is called out. 3. On perusal of the papers, it appears that the detaining authority took into consideration an offence registered against the petitioner with Gandhinagar Prohibition Station under the Bombay Prohibition Act. The detaining authority has taken into consideration statements of three witnesses whose identity has not been disclosed in exercise of powers under Section 9(2) of the PASA Act. The detaining authority came to conclusion the PASA Act. He is required to be immediately prevented from pursuing his illegal and anti-social activities. The detaining authority took into consideration the possibility of resorting to less drastic remedies and concluded that they cannot be resorted to, as the petitioner is required to be immediately prevented from pursuing such activities detrimental to public order. 4. It appears that the statements of anonymous witnesses have been recorded on 23rd and 24th April, 1999. The said statements have been verified by the detaining authority on 25th May, 1999 and the order of detention came to be passed on that very day. The detaining authority has come to conclusion that incidents narrated by the witnesses are correct and that the fear expressed by them qua the petitioner is genuine and their identity is required to be given the shelter of anonymity and the detaining authority, therefore, exercised powers under Section 9(2) of the Act. 5. It is clear from the grounds of detention that the detaining authority has taken into consideration the statements of three anonymous witnesses. In the instant case, the detaining authority has verified the statements of anonymous witnesses on 25th May, 1999 and the order of detention was passed on the very same day. The authority came to a conclusion that the fear expressed by these witnesses is correct and genuine and, therefore, the authority exercised powers under Section 9(2) of the PASA Act by not disclosing the identity of the witnesses. This Court is at loss to appreciate how the detaining authority could have arrived at this conclusion in such short spell. The detaining authority has not filed any affidavit in reply. It is, therefore, not possible to know as to what were the factors and material considered by the detaining authority besides the statements of the anonymous witnesses to come to conclusion that the fear expressed by the witnesses was genuine, that the incidents stated by the witnesses were correct and that there was need for exercise of powers under Section 9(2) of the PASA Act. 6. Similar such situation arose before a Division Bench of this Court in the case of Kalidas Chandubhai Kahar (supra), where the statements were verified on 16th October, 1992 and the order was passed on 17th October, 1992 and the Division Bench said that exercise of powers under Section 9(2) of the PASA Act was improper. This improper exercise of powers under Section 9(2) of the PASA Act was held to be detrimental to the right of the detenu of making an effective representation contemplated under Article 22(5) of the Constitution. The order of detention was, therefore, quashed. The facts of the present case squarely fall in line with the facts of that case. The order of detention, therefore, stands vitiated in the instant case as well and the petition deserves to be allowed on this count alone. 7. In view of the above discussion, the petition is allowed. The impugned order of detention dated 25th May, 1999, passed against the detenu-Ajay Harekrishna Devnath Bangali is hereby quashed. The detenu is ordered to be set at liberty forthwith, if not required in any other matter. Rule is made absolute with no orders as to costs. [ A.L. DAVE, J ] gt