IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4494 of 2002 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 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 @ MAHESH MANSUKHBHAI SOLANKI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4494 of 2002 MR AR SHAIKH WITH MS BANNA DATTA for Petitioner No. 1 MR AY KOGJE, AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 25/06/2002 ORAL JUDGEMENT 1. By this petition under Article 226 of the Constitution of India, the petitioner- detenu has challenged the legality and validity of the order of detention dated 7.11.2001 passed against him by the Police Commissioner, Rajkot City, in exercise of the powers conferred on him by Section 3(2) of The Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the PASA Act). According to the detaining authority, it was satisfied that the petitioner is a "dangerous person" within the meaning of the provisions of the PASA Act and his activities are prejudicial to the "public order". The privilege under Section 9(2) of the PASA Act is also exercised in the present case. 2. On consideration of the grounds for detention, it is clear that total six offences were registered with one police station viz. Pradyumannagar Police Station of Rajkot City for the offences punishable under Sections 379 & 392 etc. of IPC on various dates between 18.10.2000 to 17.9.2001, i.e. within one year. It would be proper to give details thereof as under:- ----------------------------------------------------- Sr.No. CR No. & Date Police Station IPC Section ------ -------------- -------------- ------------- 1. 659/2000 Pradyuman Nagar 392, 504 18.10.2000 Police Station 2. 516/2001 -do- 379 11.8.2001 3. 692/2001 -do- 392, 188 22.10.2001 4. 693/2001 -do- 392, 188 22.10.2001 5. 694/2001 -do- 392, 504 22.10.2001 6. 701/2001 -do- 392 25.10.2001 (i) It is also not a matter of dispute that the petitioner had applied for bail on 1.11.2001 and has been granted bail pending trial by competent Court in connection with all aforesaid offences. The detaining authority while recording the subjective satisfaction, has considered the submissions of two witnesses who have stated in detail the acts done qua them by the petitioner on 8.9.2001 and 27.7.2001 respectively. The gist of the statements of these two witnesses is reflected in the grounds of detention served on the detenu. Unregistered offences are also considered by the authority while passing the order of detention. These statements are verified by the authority before exercising privilege under Section 9(2) of the PASA Act. 3. Ld. counsel Ms. Banna Datta appearing for ld. counsel Mr. A.R.Shaikh for the petitioner has assailed the legality and validity of the order on number of grounds but has mainly argued on following grounds :- (i) that the offences registered against the petitioner, even for the sake of arguments accepted, on set of facts as true, even then he cannot be branded as "dangerous person" and such offending activities cannot be said to be the activities prejudicial to the "public order". At the most, it can be said to be prejudicial to the "law & order " situation only. So, detaining authority ought not to have exercised the powers under Section 3(2) of the PASA Act; (ii) that the documents supplied to the petitioner detenu were not fully legible and, therefore, quoting specific numbers of relevant pages, the petitioner was asked to furnish the legible copies from the office of the detaining authority. Number of pages which were found illegible by the detenu are reflected in the letter dated 12.4.2002 tendered today by the ld. counsel for the petitioner during the course of oral submissions. So, it is submitted that as per the settled legal proposition, it goes to the root rendering order of detention bad-in-law and hence order of detention requires to be quashed and set aside and petitioner be set at liberty forth with; (iii) that the document Annex.E page 137 is in English. Mother tongue of the petitioner is Gujarati and he was not supplied with the translated copy of this document viz. order of State Government dated 15.12.2001 and hence the same has seriously prejudiced the right of the petitioner to make effective representation against the order of detention; (iv) that the document Annexure : B on page 136 indicates that the order of detention has been approved and confirmed by the government on 16.11.2001. On that day, as per Calender and the affidavit filed by the State Government today, offices were closed as being a New Year Day. The date in the relevant document ( i.e. page 136) looks apparently overwritten and the same has been done only with a view to see that the decision taken by the government falls within the stipulated statutory period i.e. 12 days provided under Section 3(3) of PASA Act. It is vehemently submitted that on 16.11.2001, the responsible officer must not have approved the order of detention and if it was possible for him to give such approval, then on that very day, the State Government could have conveyed about this decision to the detenu. Indirectly, the ld. counsel has tried to submit that the order of approval and confirmation either is passed ante-date after 12 days mechanically or it must have been passed mechanically without proper application of mind. (v) That on four different occasions, there is unreasonable delay caused which has not been explained by the State Government which affects adversely the continued detention of the petitioner. (a) Firstly, delay has been caused in communicating the order of approval to the detenu. If the order of approval was passed on 16.11.2001, atleast on 18.11.2001 i.e. after Diwali Holidays and on reopening of government secretariate, the communication could have been sent to the detenu. The State has not cared to explain as to why the communication was not dispatched till 21.11.2001. It is submitted that it is a cyclostyled and prepared order and the relevant date was to be filled in only. So, it would not be correct to say that office took time in typing the letter of communication as stated in reply affidavit. (b) Secondly, it is submitted that there is no explanation by the respondents as to the delay caused in communicating the decision of approval of the order because it was conveyed to the petitioner on 26.11.2001 though the letter was very well ready with the government on 21.11.2001. (c) thirdly, in the same way, delay caused in dispatching the decision of the State Government to the detenu regarding rejection of the representation dated 5.4.2002 is also fatal. The decision of rejection of representation taken by the government dated 23.4.2002, could have been communicated to the detenu forthwith without any delay. Original communication received by the detenu has been tendered by the ld. counsel appearing for the petitioner today during the course of oral submissions and it indicates that jail authorities had conveyed the decision taken by the State Government on 1.5.2002 and there is no explanation from the otherside as to why this delay between 23.4.2002 and 1.5.2002 has been caused. (d) Lastly it is argued that there is delay in dispatching representation to the State Government by the detaining authority and delay in this connection for the period between 12.4.2002 to 19.4.2002 and both these delay has not been explained which renders the order and the detention illegal. Unexplained delay on all these four occasions has affected adversely the validity and legality of the order of detention and, therefore, petitioner should be set at liberty by quashing and setting aside the order of detention passed against him. (vi) That though Police Commissioner and Detaining Authority has become functus officio, authority has considered the representation and has tried to communicate to the detenu that certain legible pages are being supplied to him and his representation has been forwarded to the State Government and to the Secretary of the Advisory Board. This decision has been conveyed through incharge Police Inspector of City of Rajkot and the same was received by advocate of the petitioner Mr.A.R. Shaikh. Police Inspector has practically no authority to respond in reference to the representation made by the detenu. (vii) The last point submitted by ld. counsel for the petitioner is that in view of Article 22(5) of the Constitution of India, the statement made by the Deputy Secretary in the affidavit that it is not compulsory or obligatory on the part of the State Government to convey the approval or confirmation of the order of detention, goes to the root of the validity of the order of detention and hence the same requires to be quashed and set aside. 4. In support of her submissions, ld. counsel Ms. Datta has placed reliance on some decisions of this Court as well as of Apex Court; (i) Decision in the case of Pushkar Mukherjee and Others v/s State of West Bengal, AIR 1970 SC 852, the Apex Court has observed that :- " The contravention of any law always affects order, but it can be said to affect public order, it must affect the community or the public at large. In this connection a line of demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals, and only in a secondary sense public interest.A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect the public order comes within the scope of the Act. A District Magistrate is therefore entitled to take action under Section 3(1) of the Act to prevent subversion of public order, but not in aid of maintenance of law and order under ordinary circumstances." Referring to the decision in the case of Ram Manohar Lohia v/s State of Bihar, AIR 1966 SC 740, aforesaid observations have been made by the Apex Court. In the cited case, the conduct of the detenu was considered by the detaining authority and the Apex Court and the same is reflected in para-13 of the decision (Page 858 ). The authority found detenu Pushkar Mukharjee involved in commission of offences of riotous conduct, assault and criminal intimidation. Detaining authority has referred five such different incidents and other circumstances. First incident had occurred on 26.3.1967 where detenu was found in association with group of persons who had dragged the victim out of his room, assaulted him and friend of the detenu Harisikesh Samadder, caused injury on the person of the victim. Victim was asked to pay money. In the second, on 19.6.1967, he was found involved in assaulting the victim and ultimately was chargesheeted for the offences punishable under Sections 302, 394 of IPC. In the third incident, he was found tobe involved in giving threats to one Shri Sushil Kumar Chakraborty and he was also assaulted out of grudge when he was returning to his house. It was also on record that this detenu was detained firstly for his rowdy activities under Section 30(1) of the Defence of India Rules, 1962 and was released in the year 1965. For the similar activities, he was again detained on 19.9.1966 under the preventive detention order and was released from detention on 13.3.1967. Advisory Board found that there was sufficient cause for detaining detenu Pushkar Mukharjee on 12.6.1968. The Apex Court while quashing the order of detention has observed that ground (ii) given for detention was extremely vague. It is apparent that this ground was advanced by the detaining authority on account of earlier two detention orders. So, detenu Pushkar Mukharjee was set at liberty on account of vagueness of the grounds found in the order of detention. The ratio propounded by the Apex Court in the above-cited decision is an accepted proposition of law, but on facts, it would not help the present petitioner because there is no such vagueness in the grounds mentioned in the order of detention passed against the present petition. (ii) The second decision on which ld. counsel Ms. Datta has placed reliance is the decision in the case of Gulab Mehra v/s State of U.P.and Others, AIR 1987 SC 2332. In the cited case, the detention has been held bad mainly on two grounds; firstly that satisfaction recorded by the detaining authority was based on vague grounds and; (ii) the counter affidavit in response to the allegations made in the petition was filed by the police officer and not by the detaining authority. On facts also, the Court found that the detention is not legal. In para-11 of the decision, the Apex Court has observed; " Detention order was made on the basis of the police report and a police complaint. The report does not disclose any particulars about the shopkeepers who have been terrorised and threatened for payment of money nor the names of any of the witnesses in whose presence the threat or terror was given and money was demanded are mentioned. The report is absolutely vague and it is not possible for the detenu to give an effective representation against the aforesaid ground which is one of the constitutional requirements enjoined in Article 22(5) of the Constitution..........." In the present case, detaining authority has placed reliance on sequence of offences of similar nature registered against the present petitioner within the same police station area whereby on two occasions, he was found responsible for violating notification- prohibiory orders- issued by the statutory authority and, therefore, he has been chargesheeted for the offence punishable under Section 188 of IPC. Modus has been pointed out categorically by the detaining authority while conveying the grounds of detention and it has been further stated that he was found responsible for two other criminal wrong for which no offence is registered. So, in no way, it can be said that the grounds or the report by sponsoring authority is vague. So, on facts, the observations of the Apex Court in para-11 of the above-cited decision, would not help the present petitioner. (iii) In the case of Ayya alias Ayub v/s State of U.P. and another, (1989 )1 SCC 374, the Apex Court has held in paras-22 & 23 that: "22. To lose sight of the real and clear distinction between the "public order" and "law and order" might lead, in the process of obliteration of their outlines, to the impermissible engrafting of the latter on the former. 23. In the present case, we are not, however, impressed with the submissions of Shri Garg that the detention was solely for the purpose of rendering nugatory the order of bail, the grant of which the detaining authority had then considered quite imminent. It is true that if the only ground or justification for the detention is the apprehension that the detenu was likely to be enlarged on bail, the detention might be rendered infirm. Shri Garg relied upon the following observations in Ramesh Yadav case ( AIR p.316 : SCC P.234, SCC (Cri) P.516, para 6); On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. But, where, as here, there are other grounds, the reference by the detaining authority to the prospects of grant of bail could be no more than an emphasis on the imminence of the recurrence of the offensive activities of the detenu. Even a single instance of activity tending to harm "public order" might, in the circumstances of its commission, reasonably supply justification for the satisfaction as to a legitimate apprehension of a future repetition of similar activity to the detriment of "public order". Likewise, without merit, is the contention as to the impermissibility of an order of detention being made against a person already in judicial custody. Even if a prosecution against a person fails or bail is granted an order of detention could be passed drawing the satisfaction therefor from the facts and circumstances involved in the criminal proceedings. An offender might secure an acquittal by intimidating witnesses. It all depends upon the circumstances of each case. But it is necessary for the detaining authority to resist the temptation to prefer and substitute, as a matter of course, the easy expedience of a preventive detention to the more cumbersome one of punitive detention. " In the cited case, first two grounds were pertaining to commission of non-cognizable offence which had no rational nexus relating to maintenance of public order and this submission was accepted. As per third ground, detenu was found involved in serious offence and Sessions Court had enlarged the petitioner detenu on bail. It was specifically mentioned that serious attack was made which has spread tremor of fear in the neighbourhood and shopkeepers in the vicinity had pulled down their shutters. This is very important part of third ground which was not found supported by the documents. So, considering the element of vagueness, ultimately the Apex Court allowed the petition and quashed the order of detention. On the facts of the present case, therefore, the aforesaid decision would not help the petitioner. On the contrary, some observations in para-23 of the decision goes against the petitioner. (iv) Next decision on which ld. counsel for the petitioner has placed reliance in the case of Smt. Angoori Devi for Ram Ratan v/s Union of India & Others, (1989)1 SCC 385. Smt. Angoori Devi moved the Apex Court under Article 32 of the Constitution of India for Ram Ratan wherein order of detention was challenged and it was submitted that the problem does not touch the public order. While dealing with the petition, the Apex Court has discussed the various aspects and has decided what constitutes "public order". Detenu-police personnel- was arrested on the charge of committing congnizable offence under Section 392 R/w Section 34 of IPC with the assistance of some members from the public. After favourable order of bail during the pendency of investigation, the order under Section 3(2) of National Security Act was issued on the ground that commission of the heinous crime by police personnel themselves "created a sense of insecurity in the minds of public at large and is prejudicial to the maintenance of public order." Undisputedly, this was the solitary case registered against the concerned police personnel and discussion in para-10 of the decision is in reference to the facts of the case before the Apex Court. The Apex Court has observed that impact on the " public order" and "law & order" depends upon the nature of the act, applies where it is committed and motive force behind affecting the tempo of the life of the community. In the case on hand, detaining authority has felt satisfied that the detenu is in habit of committing similar types of offences against the property, even by violating the prohibitory directions issued by the State Authority. In all five cases, he must have applied for bail and has been granted bail in all the offences by the competent Court. Law as to bail in the field of criminal jurisprudence whether would be relevant in such type of cases is altogether a different issue which needs an independent consideration and the Courts have dealt with this point. But the apprehension expressed by the detaining authority in the grounds of detention wherein detaining authority has specifically mentioned that "you have been enlarged on bail and it may take very long time in getting bail cancelled." With a view to prevent the detenu from committing similar offences against the property and person, detaining authority on feeling satisfied that he is required to be detained as a preventive measure, the authority by applying mind in that direction can record its finding. This Court has to scrutinise the aspects considered by the detaining authority and if this Court is satisfied that subjective satisfaction has been arrived at objectively, then order of detention does not require to be disturbed. On the contrary, observations of the Apex Court in the case of Mohd. Dhana Ali Khan v/s State of West Bengal, 1975 SCC (Cri.) 695 and more particularly in para-16, are found more relevant wherein the Apex Court has negatived the contention that a single incident referred to has not even casual connection with the disturbance of public order where railway passenger was looted and the order of detention was held valid. Thus, the ratio of the decision in the case of Smt. Angoori Devi (supra), on facts, would not help the present petitioner. (vi) Ld. counsel Ms. Datta for the petitioner has placed reliance on the decision of the Apex Court in the case of Mrs. T.Devki v/s Government of Tamil Nadu & Others, reported in AIR 1990 SC 1086. In the said decision, order of detention was turned down by the Apex Court mostly on the vital facts reflected in paras 19 & 20 of the said decision. Detenu was the member of registered political party AIDMK and was active social and political worker. He was elected Member of the Tamil Nadu Legislative Assembly from Srivilliputhur Constituency in the General Elections held in 1977, 1980 and 1984. It was submitted that on account of the incident occurred in the presence of the Minister of Public Works Department sitting on the dias, when detaining authority namely the District Magistrate of Kamarajar district who was admittedly present in the Seminar, the order of detention came to be passed against the detenu. The Apex Court held that detaining authority must have relied on its own observations and knowledge instead of the report of sponsoring authority while reaching to the requisite satisfaction. In reference to this set of facts, the Apex Court observed that a solitary assault on one individual by the detenu can hardly be said to disturb public peace or place public order in jeopardy so much as to bring the case within the purview of the Act. The facts of the present case are totally different and no such extraneous consideration is peeping out and so this decision also would not help the petitioner at all. (vi) Ld. counsel for the petitioner has also placed reliance on two Division Bench decisions of this Court wherein detenues involved in different theft cases have been set at liberty forthwith only on the ground that the activities of the detenues in both the cases cannot be said to be the activities prejudicial to the "public order" and detenu cannot be termed as dangerous person within the meaning of Section 2(c) of the PASA Act. I would like to refer relevant part of the decisions relied on by the ld. counsel for the petitioner. (a) In Spl.Criminal Application No. 1681/1992 decided on 3.3.1993, Division Bench ( Coram : A.P. Ravani & J.M. Panchal, JJ ) has observed that in each case the Court has to see the length, magnitude and intensity of questionable activities of