Gujarat High Court
Valjibhai Ranchhodbhai Patel vs Commissioner Of Police And Ors. on 24 April, 1992
Equivalent citations: (1992)2GLR1538
JUDGMENT N.J. Pandya, J.
1. These two matters have come before us by way of reference from the Division Bench consisting of Justices K.J. Vaidya & S.D. Dave. The said Division Bench was taking up detention matters and in the course thereof, was dealing with the aforesaid two Special Criminal Applications where the detenus were under preventive detention as per the provisions of Prevention of Anti-Social Activities Act popularly known as PASA. It was urged on behalf of the detenus that the detaining authorities have not considered any other less drastic measure and therefore, the detention suffers from the vice of non-application of mind. To this counter was advanced on behalf of the respondent-State in two fold manner, Firstly, it was urged that, by its very nature, detention under PASA cannot have, as an alternative, any measure less or otherwise and secondly, looking to the facts and circumstances of the case, and with pointed attention to the detention order itself, what has been missing is referance to Section 57 of the Bombay Police Act under which extemment proceedings could have been initiated. Uptill now there has been several decisions of various Division Benches of this Court where non-reference to aforesaid Section 56 of the B.P. Act has been considered to be fatal and as a result, such detention orders have been quashed and set aside.
2. This matter was required to be referred mainly on account of a decision of a Division Bench of this Court reported on [1989 (2) J XXX (2) GLR 1429 (hereinafter referred to as Ashwin case).
3. The learned Judges while dealing with that matter have come across a situation that a boot-legger was sought to be dealt with under Section 57 of the B.P. Act. The said Section 57 specifically deals with boot-legging activity and persons connected with it as it was not possible for the concerned authorities to press the said Section in their favour for want of confirmation under the Bombay Prohibition Act, 1949. In that very proceeding they had a recource to Section 56 of the B.P. Act. In the course of the judgment, almost in the last paragraph, it has been observed by the learned Judges of the Division Bench that Section 57 being specially therefor boot-leggers in case the authorities failed in their attempt to invoke Section 57, they cannot alternatively fall back on Section 56. In other words, there being a special section dealing with the situation relating to boot-legger, the other provisions of the Act cannot be pressed into service, as an alternative.
4. This reasoning would clearly indicate that in cases under PASA also, if the detenu happens to be a boot-legger and while passing a Detention Order pertaining to him, if Section 57 has been referred to in the Detention Order, obviously, Section 56 was no longer available to the authorities concerned and as a result, its absence would not in any way affect the detention order under challenge. This precisely is the position in both the matters. The detenu in both the cases was involved in boot-legging activity alongwith other activities which would also make it possible for the Detaining Authority to treat him as a dangerous person, the expression as understood in PASA. For definition of these two expressions one may refer Section 2 Clauses (b) & (c). Obviously, therefore, following the said Ashwin case's reasoning, absence of reference to Section 56 of the B.P. Act cannot be said to be non-application of mind.
5. Now, coming back to the second limb of the argument, namely availability of less drastic measure, in order to qualify to be a measure less drastic or otherwise, its effect and time taken for giving that effect will have to be borne in mind. This is necessary because the order being passed under PASA has the result of detaining a person, of course, preventively with immediate effect.
6. Viewed in this light, obviously, proceedings under Section 56 or 57 of the B.P. Act read with Section 59 thereof will woefully fall short of bringing about the desired effect, namely detaining a person with immediate effect.
7. Section 59 requires opportunity being given to a person against whom proceedings either under Section 56 or 57 of the B.P. Act are being initiated. At the end, he will be directed to remove himself from a particular area or a District and may be in a given case more than one areas or Districts. As against that, the detention will result into total immobilisation of the detenu till that order remains in force and as such the situation will arise which is being colloquially known as out of circulation. Apart from this effect, when this situation is required to be created without any further loss of time, which can ideally be brought about only if powers under PASA are exercised and compared with that because of the provisions of Section 59, necessarily, proceedings under Sections 56 & 57 will take 3 months to 6 months, obviously there is no comparison between the two measures.
8. Mr. Anil S. Dave, the learned Advocate for the detenu has relied on as many as 5 judgments, two of which are reported and three are unreported. The reported judgments are (1) (Mava Arjan Parmar v. Commi. of Police) [1991 (1)] XXXII (1) GLR 481, (2) (Hiren Ratilal Jariwala v. Commi. of Police) 1990 (1) GLH 287 : 1990 (1) GLR 503. In the first matter, non-consideration of less drastic measure had led the learned Judges to hold the detention order to be bad. The Section involved was Section 56 of the B.P. Act and in the latter judgment what was left out for consideration was previous fact of externment and therefore, was held to be bad. It is obvious that of these two, only first one will have some bearing with the matter under consideration. However, for the reasons aforesaid, in our opinion, these judgments will not help the detenu. The three unreported decisions are (1) Special Criminal Application No. 1314 of 1986 disposed of on 17-7-1987 by Justices G.T. Nanavati & B.S. Kapadia, (2) Special Criminal Application No. 801 of 1987 disposed of on 11-3-1988 by Justices S.B. Majmudar and B. S. Kapadia, and (3) Special Criminal Application No. 1095 of 1991 with Special Criminal Application No. 1096 of 1991 by Justices K.G. Shah and M.S. Parikh disposed of on 23-9-1991. It could be gathered from these unreported three judgments that the orders were held to be bad for non-consideration of less drastic measure.
9. On behalf of the State, the learned Additional Public Prosecutor Shri Rawal had relied on a decision reported in (1962) III GLR 807 (Vrajlal Mohanlal v. Dist. Magistrate, Rajkot) where the question pertained to externment order passed by the District Magistrate of a particular District covering in it area of other Districts as well. This order was upheld. He next relied on (1963) IV GLR 668 (Laiji Kanji v. V.T. Shall, Dy. Commi. of Police), where the question was totally different one and obviously it did not relate to PASA. Sections 56 & 57 of the B.P. Act were being considered and discretion required to be exercised in connection therewith was the question. The third decision relied on by Mr. Rawal is (State of Punjab v. Sukhpal Singh). What has been laid down is detention need not precede prosecution.
10. These three decisions in our opinion, have no bearing whatsoever on the question that is before us.
11. Mr. Raval had also relied on a decision reported in 1989 (1) GLH 505 (Harivadan Mathurdas Modi v. Dist. Magistrate, Bharuch), where it has been held that it would be sufficient if, from the record, it appears that the concerned authority was alive to the less drastic measure.
On the same line is another decision in that very Volume appearing at page 557 (Kapurji Navaji Khatik v. Dy. Secretary, Food & Civil Supplies Dept.), where the Court has been pleased to hold that it is not necessary to refer to all possible alternative measures and it would be sufficient if the authority is shown to be alive to them.
12. The third decision in the same Volume at page 620 (Manjwhusen Ahmedhusen v. Commi. of Police, Ahmedabad) is that awareness of the authority as to the availability of alternative measure can be ascertained from the affidavit also and it need not be specified in the order. These three decisions also do not apply to the facts of the present case.
He had also relied on 1989 (2) GLH 520 (Kalidas Devji Mali v. Commi. of Police, Vadodara/. The detenu there had undergone previous detention and it had no effect obviously on the post detention behaviour of detenu and therefore, naturally, there was no question of considering any less drastic measure. This obviously, is not the point here.
13. Another decision relied on is (Kamarunissa v. Union of India). Consideration that instead of detaining a person by way of preventive measure his bail application could be opposed when that very person is under judicial custody already, is not at all relevant while evaluating the validity of a detention order. In our opinion, again, this decision has no bearing on the matter before us.
14. In this view of the matter, it is quite clear that remedy under Section 56 or 57 cannot be called a remedy when case of a person is being considered for Detention under PASA. Once these provisions are viewed in this light, in our opinion, the authorities are not required to take these provisions into consideration at all. If this be so, obviously, mere non-mentioning of Section and in the instant case Section 56 of the Bombay Police Act, can have no bearing on the matter. We, therefore, answer the question 'whether mere non-consideration of the less drastic measures, such as of "externmem" under Section 56 of the Bombay Police Act, 1951 by the Detaining Authority before passing any order of detention under Section 3(2) of the Giiprat Prevention of Anti-Social Activities Act, 1985, against the detenu can be said to be a matter of non-application of its mind vitiating the subjective satisfaction and ultimately invalidating the order of detention, put forward by the referring Bench, in the negative against the detenu.
The matters be placed before the regular Bench for final disposal.