Gujarat High Court
Roshanbibi Mohmadkhan Pathan vs Commr. Of Police And Anr. on 30 December, 1988
Equivalent citations: 1990CRILJ204
Author: S.B. Majmudar
Bench: S.B. Majmudar
JUDGMENT S.B. Majmudar, J.
1. The petitioner who is detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (the PASAA for short) by an order dated 20-4-1988 passed by the Commissioner of Police, Surat City has brought in challenge the said order on diverse grounds. The petitioner was taken in custody on the same day and was furnished the grounds of detention of even date. At the time of final hearing of this petition, Mr. Kapadia for the petitioner raised the following contentions : --
(1) That the detaining authority has arrived at his subjective satisfaction without application of mind inasmuch as he has mentioned in the grounds of detention that he was satisfied that there was imminent need to prevent the petitioner as steps against her under any other law had no effect on her and she had continued her bootlegging activities. That the said statement in the grounds of detention shows complete non-application of mind inasmuch as the earlier paragraphs of the grounds of detention reveal that steps were taken against the petitioner in the past only under one law, viz. the Bombay Prohibition Act and not under any other law and still the detaining authority proceeded on the assumption as if steps were taken against the petitioner under different laws and the said step had no effect. Consequently, the subjective satisfaction underlying the order of detention has got vitiated and hence the order is liable to be set aside.
(2) In the grounds of detention, it has been stated that the detaining authority has ascertained that what the witnesses had stated against the detenu before the sponsoring authority was true and he was satisfied about the same that there is nothing on record to show whether any such inquiry was at all made by the detaining authority and consequently, it must be held that no such inquiry was made by the detaining authority before arriving at the subjective satisfaction about the need to detain the detenu on the basis of the statements of these witnesses and on this ground also, the order of detention is liable to be set aside.
(3) In the alternative, it was submitted that even assuming that the statements of the witnesses were verified by the Superintendent of Police, as is found during the hearing of this petition from the record of the relevant material with the respondent, even then the order of detention based on these statements is liable to fail as the original statements of these witnesses were bearing endorsement below litem of being verified by the Superintendent of Police on April 19. while the copies of the statements supplied to the detenu along with the grounds of detention did not mention this verification and were supplied without the copies of me relevant endorsement below the concerned statements; that no privilege was claimed by the respondent detaining authority in connection with these endorsements by the Superintendent of Police and still, the factum of these endorsements was withheld from the petitioner. It must, therefore, be held that the copies of the statements of witnesses were not supplied in full to the petitioner and that affected her right under Article 22(6) of making an effective representation against the statements and hence also, the continued detention of the petitioner has become void.
(4) The detaining authority has mechanically exercised the power of detention by blindly accepting the proposal of the sponsoring authority and hence also, the order of detention is void.
(5) The detaining authority has not considered certain vital and relevant facts concerning the detenu. These facts, if considered, would have tilted the balance one way or the other and would have affected the subjective satisfaction of the detaining authority about the need to detain the detenu. All these vital facts were either not placed by the sponsoring authority before the detaining authority or if placed, did not appear to have been considered by the detaining authority. In any case, the petitioner has not been informed about the same in the grounds of detention and consequently, the continued detention of the detenu has become bad.
(6) The privilege exercised by the detaining authority under Section 9(2) of the PASAA read with Article 22(6) has got vitiated inasmuch as the detaining authority in the grounds of detention in this connection has observed that there was possibility of communal riots in case the Muslim supporters of the detenu went to beat Hindu witnesses who had deposed against the detenu; that these observations of the detaining authority in the grounds of detention are based on no material and are a pure conjecture which has affected his subjective satisfaction under Section 9(2) about the need to exercise privilege and as the exercise is a subjective exercise, the entire subjective satisfaction has got vitiated.
(7) It was contended in further continuation of ground No. 6 but as a separate aspect that the conclusion reached by the detaining authority about likelihood of communal riots getting flared up is very vague and has kept the detenu guessing. Consequently her right under Article 22(5) of the Constitution of making a representation in this connection is infracted and. therefore, the continued detention has become void.
(8) The detaining authority has exercised his privilege under Section 9(2) of the PASAA read with Article 22(5) of the Constitution on a misconception that apprehension regarding danger to person and property of the witnesses had connection with public interest and that for safeguarding such interest, privilege had to be exercised. Relying on decision in Bai Amina's case. (1981) 22 Guj LR 1186 : (1982 Cri LJ 1531). it was submitted that exercise of privilege on the aforesaid ground is illegal and invalid.)
2. (Contention No. 1): So far as this contention is concerned, our attention was invited by Mr. Kapadia to the grounds of detention at page 13. In para 1 of the grounds, it is stated that the petitioner was involved in 31 offences under the Bombay Prohibition Act. Out of these cases. 20 cases were pending trial and 11 cases were pending investigation. We were then taken to para 3 of the grounds which states that the petitioner was arrested for the offence under the Bombay Prohibition Act on 14-2-1986 and after being released on bail, she had again involved herself in other offences and by 11-2-1988. she was arrested in 31 prohibition cases under the Bombay Prohibition Act. We were then taken to para 4 of the grounds which stated that having carefully considered the aforesaid evidence and in the light of what is stated in para 1 of the grounds, the detaining authority was satisfied that the petitioner was running liquor den keeping in her possession country liquor and that she had been involved in offences under the Bombay Prohibition Act and she was a known bootlegger. Then follow certain recitals which showed that it was not possible to take steps under Section 437 of the Cr. P.C. for getting her bail cancelled and there was no use resorting to steps under Section 93 of the Bombay Prohibition Act or under Sections 107 and 110 of the Code of Cr. Procedure nor any purpose would be served by resorting to steps under the Bombay Police Act for exteming the petitioner from the concerned area. Then follows sub-para of para 4 which states that her activities have spread to large extent and she was always involved in such activities. Thereafter occur the following sentences which when translated in English read as under :-- "Steps taken against you under any law have no effect on you and you have continued your activities. With a view to giving phillip to your bootlegging activities, you are again and again disturbing public order. Because of your aforesaid activities, no safety is left for person and properly of the members of the public. Hence, with a view to preventing disturbance of public order because of your bootlegging activities and in public interest, it is found necessary and proper to detain you under PASAA and 1 am satisfied in this connection". Relying on the aforesaid averments, in Sub-para (1) of para 4 of the grounds it was submitted by Mr. Kapadia that the detaining authority while arriving at subjective satisfaction about need to preventively detain the detenu, considered two aspects of the matter viz. (1) steps taken against the petitioner under any law and (ii) steps which can be taken by way of less drastic remedy under any other laws. So far as latter aspect is concerned, the detaining authority came to the conclusion that no useful purpose will be served by taking steps in future under any other laws by way of less drastic remedy. But so far as former aspect is concerned, the detaining authority referred to steps which were actually taken in past against the detenu under any law and that law was only the Bombay Prohibition Act because the earlier paras of the grounds clearly indicated that the petitioner was already proceeded against on various occasions only under the Bombay Prohibtion Act. No other steps were taken against her under any law save and except the Bombay Prohibition Act. It was. therefore, submitted that when actual steps were taken against the petitioner under only one law viz. Bombay Prohibition Act. the detaining authority made incorrect assumption and observed that steps taken under any law against the detenu had no effect, meaning thereby, he thought at that stage that actual steps might have been taken against her under more than one laws and so far as this assumption is concerned, it is factually not borne out and. therefore, the subjective satisfaction based on this imaginary ground has got vitiated and hence, the order must fail. In this connection, our attention was invited by Mr. Kapdia to Oxford English Dictionary. Vol. 1. 1970 Edition, (reprint) at page 378 wherein various meanings of the word 'any' have been given. He put emphasis on the meaning of 'any' in the said dictionary to the effect that it would mean 'other' and it is used in singular as well as plural sense. It was submitted that when the detaining authority used the words 'steps taken under any law had no effect', he meant to convey that steps might have been taken under more than one laws against the detenu and they had no effect on her; while in fact the steps were taken only under the Bombay Prohibtion Act and. therefore, the aforesaid observations which are part and parcel of the process of subjective satisfaction are clearly based on imagination. He also placed strong reliance on the judgment of this very bench in spl. crl. appln. No. 494 of 1988 decided by us on 28-12-1988. It is true that in that decision, identical recitals used by the detaining authority in that case were construed and in the light of the grounds of detention in that case and in the context and settings of various grounds, it was held that the detaining authority's observations that steps taken against the petitioner of that case under any law. tried to convey that steps were taken under various laws while they were taken only under the Bombay Prohibition Act and. therefore, the subjective satisfaction in that case was found to be based on consideration of an imaginary circumstance and. therefore, it failed. It must be stated that the aforesaid decision prima facie supports the view which is canvassed by Mr. Kapadia. But as we will show hereafter, on the facts of this case, the ratio of that decision will be of no avail to the petitioner.
3. Mr. Kapadia also invited our attention to the observations of the Supreme Court in the case of Icchu Devi v. Union of India. AIR 1980 SC 1983. In head-note (b) dealing with Article 22(5) of the Constitution read with Section 3(3) of COFEPOSA Act. it is stated--
"When Clause (5) of Article 22 and Sub-section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be. what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them."
Mr. Kapadia. therefore, submitted that the word 'any' in the context would mean "number of" documents or in plural sense.
4. Mr. Mehta. learned P. P. appearing for the respondents on the other hand submitted that if we read the aforesaid averments in the round of detention on which strong reliance has been placed by Mr. Kapdia. in juxta position with what is stated in para 1 of the grounds of detention and Sub-para (1) of para 3. it becomes at once clear that what is meant by the detaining authority was that the steps taken even under one law and no effect on the detenu meaning thereby, he was referring to various steps taken under the Bombay Prohibition Act as mentioned in the aforesaid earlier paras of the grounds. Therefore, though the term 'any' may in a given context be interpreted in plural sense, in the present proceedings, it would mean steps taken under one law and not necessarily under more than one laws. It was further submitted that Mr. Kapdia would have been on a stronger footing if it was mentioned in the said para that steps taken under any other law had no effect on the petitioner and that as the word 'other' was missing, it cannot be said that the detaining authority had imagined that steps were also taken under any other law save and except the Bombay Prohibition Act. It was also submitted that it is possible to construe the aforesaid words to mean that the detaining authority was referring to any steps taken under the law meaning thereby. the word any would go in the context with steps rather than law. He also invited our attention to Stroud's Judicial Dictionary Vol I. page 145 where various meanings of the word any have been mentioned, and the very first note reads 'any' is not confined to a plural sense. In the last Sub-para (5) of the para relating to various meanings of the word "any" it has been mentioned "Its generality may be restricted by the subject matter or the context. Thus, any action' meant any country court action." It was submitted that the word 'any' may have singular or plural meaning in the context in which it is used, in a given case and on the peculiar context in which 'any' has been used in the present case, it has only one meaning viz. steps taken under one law viz. Bombay Prohibition Act and not under more than one laws. It was submitted that these various aspects of the matter were not canvassed before us earlier when we decided spl. crl. appln. No. 494 of 1988 and. therefore the decision rendered in that case on the facts of that case cannot be made applicable to the present case where the facts are entirely different and the settings and context of the ground of detention are also different, it was also contended that the aforesaid decision in spl. crl. appln. No. 494 of 1988 was based on its own facts and no general proposition of law was laid down to cover all cases having different sets of facts and there was no general ratio discernible from the aforesaid Division Bench judgment.
5. Having given our enxious consideration to the rival contentions, we find that there is lot of substance in what the learned P. P. canvassed before us. It is tried to say that the word 'an.' in the context of its settings may have various shades of meanings. It may have siggular or plural meaning. But so far as settings of the present grounds of detention are concerned, no doubt is left in our mind that what the detaining authority meant to convey when he stated that steps taken under any law had no effect on the petitioner's activities, was that the steps taken under the law as referred to in by him in earlier paras viz. para 3(1) and Sub-para (1) of para 4 had no effect. They were all steps under any one law i.e. the Bombay Prohibition Act. Therefore, in the peculiar settings of these averments, in Sub-para (2) of para 4 of the grounds, the words 'steps taken under any law' have to be read as meaning steps taken under the Prohibition Act viz. under one law and not necessarily under more than one laws. All these various aspects of the matter were not thrashed out before us while we decided spl. crl. appln. No. 494 of 1988. Even otherwise, we must hold that the decision of that case was rendered on the peculiar facts of that case and in the light of the settings of the grounds in that case and no general ratio was laid down therein to the effect that in other cases despite different contents of the grounds in those cases, it must always be held that the detaining authority meant to convey that steps were taken under any other laws and. therefore, subjective satisfaction must necessarily be held to be based on imaginary grounds. We must also note that no such general ratio is laid down in spl. crl. appl. No. 494 of 1988 as tried to be culled out by Mr. Kapdia and that decision must be confined to its own facts and must be held not to be laying down any general ratio. On the peculiar facts of this case, we have no hesitation in holding that what the detaining authority wanted to convey was that steps taken against the detenu under the Bombay Prohibition Act had no effect. That is the reason why he had come to the subjective satisfaction about need to preventively detain the detenu with a view to putting her out of harm's way. We. therefore, do not find any vitiation of the aforesaid subjective satisfaction on the ground that it was based on some imaginary consideration. The first contention of Mr. Kapadia. therefore, fails and is rejected.
6. Contention No. 2: It was vehemently submitted by Mr. Kapadia that in para 2 of the grounds of detention, at annexure 'B'. it has been stated by the detaining authority that witnesses were afraid of the detenu and had requested that their names and addresses may be kept secret from the detenu as they were afraid that if the detenu came to know about the same, she would see that witnesses are beaten by her or by the agents and in this connection, he had made inquiry and he had ascertained these facts and it was found that what the witnesses had stated was true. Mr. Kapadia submitted that no material was furnished to the detenu about alleged inquiry made by the detaining authority in this connection. He invited our attention to the copies of the statements of witnesses furnished to the detenu at pages 90 to 93 of the compilation, and submitted that all these copies showed that the witnesses 1 to 4 whose names and addresses were kept blank had deposed against the petitioner before D. R. Buch, Police Inspector, P.C.B. Surat City, who was the sponsoring authority. But these statements do not indicate that they were verified by any one. If the detaining authority had verified these statements, he would have put his endorsement of having verified the statements, but there is no such endorsement by him. It was, therefore, submitted that in fact, the detaining authority had not ascertained about the veracity of these statements and he had made wrong statement in the grounds of detention that he had verified the same. Consequently, his subjective satisfaction based on alleged non-existing verification and inquiry must be held to be vitiated by law. Mr. Kapadia, in this connection, submitted that in a given case, the detaining authority might have relied upon the contents of statements recorded by the sponsoring authority. But in the present case, when he has come out with a definite case that he himself had got the statements verified, then, it was for him to point out to the detenu in the grounds of detention as to how he had got them verified or at least, there must be some contemporaneous record to show that he had got made such verification. In the absence of such record, his bald statement in the grounds of detention that he had ascertained about veracity of the statements, remains a wrong statement or a statement which is based on non-existent data and when ascertainment by him is the basis of his subjective satisfaction and if this basis is found to be non-existent satisfaction though subjective, must fail and will not support the detention order. Relevant averments in this connection are made in para 9 of the petition at page 7 of the compilation. When we turn to the reply of the detaining authority at page 10 3, we find that he has stated in para 14 of his affidavit in reply that statements of the witnesses were recorded by the sponsoring authority on 19-4-1988 and the proposal for detention was forwarded to the detaining authority on 20-4-1988. The proposal was received on the same day i.e. 20-4-1988 and after carefully going through the material and the proposal and on verifying all the persons whose statements were recorded and verifying about their apprehension on 20-4-1988, he passed the order of detention based on the grounds of detention supplied to the detenu. The aforesaid stand taken on oath by the detaining authority shows that though statements of witnesses were recorded by the sponsoring authority on 19-4-1988, the proposal and the statements reached the detaining authority on the next day and on the next day, he got the statements verified after due inquiry. In this connection, it is also necessary to note what he stated in para 13 of the affidavit. He stated that he himself has called for witnesses who had requested him not to disclose their names because they were afraid of the detenu. He, therefore, after verifying personally accepted the proposal not to disclose their names. Therefore, so far as the affidavit-in-reply is concerned, a definite stand has been taken by the detaining authority before us that on 20-4-1988, he personally made the inquiry and verified the truth and veracity of the statements by personally calling the witnesses before him. Mr. Kapadia vehemently submitted that no detail of such verification has been furnished to the detenu in the grounds of detention. In our view, no such details were required to be communicated to the detenu. It is obvious that the detenu has been informed in the ground of detention that the detaining authority had verified these statements before passing the order. Thus, basic fact in this connection was communicated to him. How he made the inquiry is a matter of details. That would not form part of grounds of detention which are required to be communicated under Article 22(5) of the Constitution. The manner of inquiry, if challenged is to be established before the Court. In the present case, the detaining authority has clearly stated that on 20-4-1988, he personally called the witnesses and ascertained that what they had stated before the sponsoring authority was true.
7. Mr. Kapadia next submitted that there must be some contemporaneous record before the detaining authority and we should not automatically accept as a gospel truth what is stated in the affidavit, as it may be an afterthought. To that extent, Mr. Kapdia's stand is justified. We have to ascertain from the contemporaneous record as to whether there was any basis for saying that the detaining authority had himself undertaken the exercise of verification as stated by him before us in the affidavit-in-reply. We, therefore, requested the learned P. P. to make relevant file available to us. On perusal of the file, we find as follows. In para 2 of the summing up signed by the Police Commissioner on 20-4-1988, it has been mentioned that he had ascertained as to what the four witnesses had stated before the sponsoring authority and he had found that what they had stated was true and, therefore, he was satisfied that the detenu was acting in such a manner in her bootlegging activities that the same were disturbing public order. He then stated as under "But the witnesses have requested to keep their names and addresses secret because of the fear of the detenu. The witnesses were, therefore, informed that they need not be afraid of the lady and police will give them protection. But the witnesses appeared to be disturbed and they told me that mere placing of police for their protection would not be sufficient and if this lady was informed about their names and addresses, they were sure to be beaten through her persons and there was apprehension of danger to their person and property." In this connection the detaining authority made inquiry and on ascertaining the same, he found that what the witnesses had stated was true. These averments in the summing up dated 20-4-1988 itself, which reflects contemporaneous record, clearly reveal that on that day, the detaining authority himself had called the witnesses before him and they had stated (sic) what is stated in the affidavit before us by the detaining authority is clearly borne out from the contemporaneous record as reflected by the summing up dated 20-4-1988. In this connection, Mr. Kapadia also invited our attention to last line of para 13 of the affidavit wherein it is stated that he had also kept the record of the inquiry as aforesaid. He posed a question as to where is the record of this inquiry ? It is true that word 'contemporary' is deleted in the affidavit. But it is obvious that when the detaining authority stated that he had kept the record, he means the record of what he did at the relevant time on 204-1988. Mr. Kapadia submitted that if he had kept the record, it would have been reflected by endorsements below the statements or there would have been separate notings to that effect. But there is nothing of the say in the file. In this connection, we must state that save and except the aforesaid summing up, there is no other independent record of contemporaneous nature on the file about the inquiry which the detaining authority made on 20-4-1988 in connection with the verification of the statements of the witnesses. But in our view, there is no such law that there should be a separate record maintained in this connection and such record should be reflected from any part of the file. The aforesaid averments in the summing up signed by the detaining authority himself clearly reflected as to what he did on that day and that is the record of the inquiry which is mentioned in his statement before us namely that he had kept record of the inquiry. Merely because the record of inquiry is not kept in a separate sheet but is a part and parcel of the summing up, it would not mean that it did not form part of the contemporaneous record. It must, therefore, be held that on the facts of this case, it is clearly established by the respondents that due verification was made by the detaining authority himself about the veracity of the statements of witnesses recorded a day prior by the sponsoring authority and he himself found that what was stated therein was correct and thereafter he had passed the impugned order. Therefore, the submission of Mr. Kapadia that no inquiry was made by the detaining authority on 20-4-1988 in this connection is factually not borne out. Once this conclusion is reached, there remains no question of the subjective satisfaction of the inquiry authority getting vitiated on account of absence of such verification or inquiry by the detaining authority himself. The second contention is found to be devoid of any substance.
8. Contention No. 3: This contention is a sequitor to the second contention and it is in the alternative. Mr. Kapadia submitted that the original statements which are in the file of the detaining authority which was made available for our scrutiny may be seen and it may be found out whether they bear any endorsements. When we saw these original statements, we found that they were bearing the endorsements of verification by the Police Superintendent on 19-4-1988. Taking a clue from this factual position, Mr. Kapadia submitted that the sponsoring authority appeared to have got mere verification of these statements by the Police Superintendent on 19-4-1988 and then these statements were placed before the sponsoring authority. The entire record seems to have been sent by the sponsoring authority with his proposal to the detaining authority which reached him on the next day i.e. 20-4-1988 as stated by him before us in the affidavit-in-reply. Therefore, according to Mr. Kapadia, the original statements would be the documents comprising not only of the contents of the statements but also endorsements of verification below the statements by the Police Superintendent. So far as these endorsements by the Police Superintendent are concerned, though they were before the detaining authority, copies of endorsements have not been supplied to the petitioner. He invited our attention in this connection to the copies of the statements supplied to the detenu at pages 90 to 93. We have already referred to these statements earlier. It is true that copies supplied to the detenu did not bear any endorsements of verification by the Police Superintendent on 19-4-1988. When we turned to the original statements which were placed before us and which were in the file, we noticed that the original statements copies whereof were furnished to the detenu showed that they were bearing endorsements to the effect "Verified" and these endorsements were made by the Superintendent of police. Eastern Disivsion, Surat city and the dates of such endorsements were 19-4-1988. Save and except the aforesaid word 'verified' nothing more was mentioned in the endorsements. Mr. Kapadia is right when he submits that at least these endorsements showing the fact of verification were not communicated to the petitioner along with the copies of the statements furnished to him. However, the moot question remains as to whether there is any legal effect of the this non-communication of endorsements of the Superintendent of Police below these statements. Mr. Kapadia laid great store on Article 22(5) of the Constitution and submitted that it is the constitutional duty of the detaining authority to furnish to the detenu entirety of the statements relied upon by him for the purpose of passing detention order, and any material or part thereof which has been relied upon by the detaining authority for basing his order of detention must be communicated to the detenu, otherwise, his constitutional right under Article 22(5) would be violated. He invited our attention to the definition of 'document' in Section 2(29) of the I.P. Code and submitted that even endorsement on the document can form part of the document. He also invited our attention to three decisions of the Supreme Court reported in AIR 1981 SC Vol. I and II. In the case of Shalini Soni v. Union of India, AIR 1981 SC 431 : (1980 Cri LJ 1487), it has been mentioned in head note (c) that 'grounds', in Article 22(5) do not mean mere factual inference but mean factual inference plus factual material which led to such factual inferences. The 'grounds' must be self-sufficient and self-explanatory. Therefore, copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'. The failure to communicate the factual material as a part of the grounds would amount to non-communication of grounds on which the order of detention has been made and thus would infringe Article 22(5). It is true that all factual inferences drawn from factual material will have to be communicated to the detenu. But the question is whether endorsement of verification made below each of the original statements of the witnesses on 19-4-1988 by the Superintendent of Police furnished any factual material on the basis of which the detaining authority has drawn any factual inference against the detenu for the purpose of passing the order of detention. If he has done so, then necessarily the fact of this endorsement and the contents of this endorsement were necessarily required to be communicated to the detenu. But if he has not done so, and if he has not based his subjective satisfaction on these endorsements of verification by the Superintendent of Police on 19-4-1988, and if the detaining authority has himself not relied on these endorsements, then these endorsements were not required to be communicated as they would remain totally irrelevant so far as detention order is concerned. Mr. Kapadia invited our attention to another decision of the Supreme Court in the case of Kamla v. State of Maharashtra, AIR 1981 SC 814 : (1981 Cri LJ 353) which lays down that documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention. Even this authority clearly indicates that those documents and materials which are relied upon in the order of detention form integral part of the grounds. Emphasis is that the material on which reliance has been placed by the detaining authority for passing the order of detention has to be communicated to the detenu. He also invited our attention to the third decision of the Supreme Court in this connection. It is the case of Kirit Kumar v. Union of India, AIR 1981 SC 1621 : (1981 Cri LJ 1267). Head note (B) reads as under : --
"Plea that copies of documents relied on by detaining authority not supplied to detenu -- High Court is not competent to determine relevance of those documents -- Nor should it go through confidential files and reject the plea."
Now when we turn to para 11 of that report, we find that the submission before the Supreme Court in that case was that two documents referred to in the order of detention were not supplied the detenu and hence Article 22(5) are violated. The High Court rejected this contention on the ground that the documents were merely referred to and not relied on by the detaining authority and after having examined the documents, it found that the same were not relevant. In this connection, the Supreme Court observed (at p. 1624) -
"With due respect to the Judges we are unable to agree with the view taken by them. In the first place, it was not open to the court to have waded through the confidential file of the Government in order to fish out a point against the detenu. Secondly, the question of relevance was not to be decided by the court but by the detaining authority which alone had to consider the representation of the detenu on mertis and then come to the conclusion whether it should be accepted or rejected. As the reasoning of the High Court was legally erroneous, the order of the High Court cannot be allowed to stand and is quashed".
It, therefore, appears that if the material was found to be relevant by the detaining authority for passing the detention order, it is not for the court to sit in appeal over that decision and hold that because the material was not relevant, it was not required to be communicated to the detenu. In this connection, it is profitable to look at the observations in para 12. They are extracted in head-note (c) to the following effect : --
"Where the documents concerned are referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention."
Therefore, it will have to be found out whether the endorsement of verification by the Superintendent of Police on 19-4-1988 below these statements of witnesses were referred to by the detaining authority in the grounds of detention and whether they were considered and relied upon by him for basing the order of detention. If the answer is in the affirmative, then of course, Mr. Kapadia would be on a stronger footing but if on the other hand, the answer is in the negative, his contention would fail. We, therefore, propose to consider this factual question in the light of the grounds of detention. A mere look at the second para of the grounds reveals that the detaining authority referred to the contents of the statements of the witnesses which were placed before him for consideration, and thereafter, he has stated in the grounds in para 2 in this connection that he himself had made inquiry and he found on inquiry that what the witnesses had stated was true. The fact that he himself made inquiry on 20-4-1988 and verified the statements is borne out from the record of this case, as discussed by us while dealing with contention No. 2. Therefore, so far as detaining authority is concerned, all that he has done is to rely upon the contents of the statements of these witnesses and the verification of these statements by himself on the next day i.e. on 204-1988. He has not based his subjective satisfaction about need to detain the detenu on the verification made by the Superintendent of Police on the previous day. He has totally ignored the same and kept it out of consideration. In other words, he was not subjectively satisfied about the need to detain the detenu because the Superintendent of Police on verification on the previous day, had found the statements to be true as reflected by the endorsements. So far as detaining authority is concerned, this circumstance was treated to be irrelevant. He brushed it aside. He pressed in service only contents of the statements of the witnesses and the result of his own verification of these statements by calling the witnesses before him on 20-4-1988. It is on that personal verification that his subjective satisfaction is reached. This is also corroborated by the contemporaneous evidence in the shape of written summary of even date i.e. 20-4-1988 to which we have made a detailed reference while dealing with contention No. 2. Therefore, factually, it must be held that the endorsements of verification made by the Superintendent of Police on the previous day below these statements of witnesses were not at all considered by the detaining authority while passing the impugned order. Therefore, it must be held that on facts of this case, the detaining authority thought that these endorsements were irrelevant and he was not going to base his subjective satisfaction on the verification made by the Superintendent of Police, but he himself wanted to satisfy his conscience that what the witnesses had stated was true. He, therefore, made inquiry and got satisfied in this connection on 20-4-1988. It is now well settled in the light of the authorities cited by Mr. Kapadia that question whether a document is relevant or not for the purpose of detention is for the detaining authority to decide and not for this court. Therefore, if the detaining authority on the facts of this case took the view that the endorsements by the Police Superintendent about verification of statements on 19-4-1988 were irrelevant for the purpose of ordering detention, Mr. Kapadia cannot submit that we should, despite this clear stand of the detaining authority, hold that these endorsements are relevant for the purpose of order of detention. It would amount to cutting across the subjective satisfaction of the detaining authority and introducing extraneous aspects or rewriting his subjective satisfaction which is not open to us in the present proceedings. Therefore, factually, it is found that whatever verification might have been done by the Supreintendent of Police on 19-4-1988 has not entered the process of subjective satisfaction of the detaining authority while passing the impugned ordrer. It remained totally an irrelevant circumstance. That is precisely why copies of the endorsements are not supplied to the detenu. If they had entered the subjective satisfaction of the detaining authority, then necessarily, they were required to be furnished to the detenu and they would have been furnished. If the entire contents of the statements were conveyed to the detenu, there was no reason for the detaining authority to keep these endorsements back. Therefore, factually it is found that these endorsements of the Superintendent of Police had not formed any part of the material on which the detention order is based and consequently, there was no obligation for the detaining authority to supply this irrelevant material to the detenu. Hence, it is found that Article 22(5) is not infracted on the facts of the present case. Mr. Kapadia's contention that endorsement would form part of the document cannot be accepted on the peculiar facts of this case. It is also obvious that endorsement of verification is not integral part of the document itself. Contents of the statements of the witnesses consist of what the witnesses stated before the Sponsoring authority. That will be the main documents. Verification of contents of the documents by a separate inquiry is dehors the documents and independent of them. It is true that proof regarding verification of the contents may be found from endorsement but that only corroborates the fact of independent inquiry about contents of the document; endorsement of verification cannot be said to be an integral part of the document or statement of witnesses. Even that apart, if such independent verification by the Superintendent of Police reflected by endorsement below the document was pressed in service by the detaining authority for passing the order of detention, then, in the light of the settled legal position, he was required to communicate the said fact to the detenu. But as seen above as the detaining authority in the present case has totally brushed aside the same and has not relied upon the same, he was not obliged to communicate this fact to the detenu for the purpose of Article 22(5). The third contention of Mr. Kapadia, therefore, also fails and is rejected.
9. to 13. * * * * * * * * *
14. Contention No. 6 : So far as this contention is concerned, it is true that in the grounds of detention, it is stated that the detenu is a Muslim while the witnesses deposing against her are Hindus and if their names and addresses are made known to her, there was possibility that the detenu through her persons may get these witnesses beaten. In these circumstances, if other persons come in support of these Hindu witnesses and if on the side of the detenu, Mulisms come to support her, there was possibility of communal riots between Hindus and Muslims. Mr. Kapadia vehemently submitted that there was no material before the detaining authority for having this inference and, therefore, the subjective satisfaction reached by him about the need to withhold names and addresses of the witnesses in exercise of the power under Section 9 of the PASSA gets vitiated. We may also point out from the grounds of detention that he has exercised his right to claim privilege under Section 9(1) primarily on the ground that the witnesses were afraid of being beaten at the hands of the detenu or her persons and if the names and addresses were not withheld, consequences, according to the detaining authority, were likely to be serious. It is from the point of view of consequences of non-withholding of names and addresses of the witnesses that the detaining authority has made the aforesaid observations about likelihood of communal riots. We may in this connection also refer to what the detaining authority has to say in his affidavit in reply. In paras 13 and 14 of the affidavit, he has stated how he himself got the statements of the witnesses verified by calling the witnesses. We have already made a detailed reference to it earlier. In further affidavit, at page 118, para 7, he has stated that the detaining authority has claimed privilege not to disclose the names and addresses of the witnesses under Section 9 of PASAA. That drawing of inference about spreading of communal riot if names and addresses of witnesses are disclosed is not fanciful. The detaining authority has applied his mind thoroughly and has come to the conclusion that in the larger interest of the society, it was necessary to claim privilege under Section 9(2), otherwise disclosure of either fact may lead to communal riot. It has been further stated that disclosure of names and addresses of witnesses may lead to attack on the person and property of the witnesses as apprehended by the witnesses and that may flare up communal riot and this inference and apprehension is not misplaced.
15. It is to be noted that inference about flaring up of communal riot is consequential inference which is drawn by the detaining authority. But the question is whether for that inference, there is any factual basis. Mr. Kapadia submitted that there is no factual basis. It is not possible to agree with this contention for the simple reason that the material before the detaining authority in the shape of statements of witnesses clearly indicated that these witnesses who y ere Hindus and which fact is communicate to the petitioner in the grounds of dete(SIC), were afraid of the detenu who is a Muslim. Thus, the witnesses were apprehending danger to their person and property if their names and addresses were communicated to the petitioner. That was very much there in the statements before the detaining authority. From this factual data, the detaining authority drew a factual inference that if names and addresses were disclosed, certainly there was apprehension that these witnesses who were Hindus may be beaten by the petitioner who is a Muslim and against whom statements are given and for that, she would take help of her men. It may be that her men may be Hindus or Muslims. The question is whether there was possibility of communal riot getting flared up on account of group of Hindu witnesses and their persons being beaten by the rival group supporting the case of Muslim detenu. In our view, the said inference cannot be said to be fanciful or not based on relevant material. The relevant material is supplied by the statements of four witnesses clearly mentioning this apprehension. Consequently, it cannot be said that the inference about possibility of communal riot being flared up on the basis of this data was in any way imaginary or based on no factual material. It must be kept in view that the detention orders are being based on prognosis about future situations which are required to be prevented in the light of the existing material and on the basis of such material if this prognosis is reached, it cannot be said that it is unjustified or did not logically flow from the material on record. In fact, a similar contention raising similar attack on the subjective satisfaction about inference regarding communal riot on almost identical fact situation, as revealed from the grounds of detention, was negatived by us in special criminal application No. 433 of 1988 decided on 21-12-1988. On the very same reasoning which was adopted by us for rejecting similar contention, this contention also has to be rejected, even apart from the reasoning which we have given hereinabove, for repelling this contention. It is, therefore, not possible to agree with Mr. Kapadia that the subjective satisfaction underlying the exercise of protection under Section 9(2) of PASAA had got vitiated or was based on irrelevant or ill(SIC) consideration. The sixth contention, therefore, stands rejected.