Gujarat High Court
Dilipbhai Bharatbhai Dhadhal vs State Of Gujarat on 1 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1990
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/19009/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19009 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18834 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 19010 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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DILIPBHAI BHARATBHAI DHADHAL
Versus
STATE OF GUJARAT
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Appearance:
MR K S CHANDRANI(6674) for the Petitioner(s) No. 1
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE G.R.UDHWANI
Date : 01/09/2020
COMMON ORAL JUDGMENT
1. The following reliefs have been prayed for in these petitions:
Special Civil Application No. 19009 of 2019.Page 1 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020
C/SCA/19009/2019 JUDGMENT "31(A) xxxxx
(B) This Hon'ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside at a pre-execution stage the order of detention if any passed by Respondent No.2 under the provisions of the PASA Act on basis of the solitary offence registered with Savarkundla Rural Police Station Amreli I- C.R. No. 36 of 2016 at Annexure-A. (C) This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. for not executing the order of detention till the admission, hearing and final disposal of this petition and thus to stay further proceedings.
(D) This Hon'ble Court may be pleased to direct the respondents to produce the order of detention alongwith the grounds of detention before this Hon'ble Court for kind perusal of the same.
(E) xxxx Special Civil Application No. 19010 of 2019.
"31(A) xxxxx (B) This Hon'ble Court may be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside at a pre-execution stage the order of detention if any passed by Respondent No.2 under the provisions of the PASA Act on basis of the solitary offence registered with Savarkundla Rural Police Station Amreli I- C.R. No. 36 of 2016 at Annexure-A. (CI) This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. for not executing the order of detention till the admission, hearing and final disposal of this petition and thus to stay further proceedings.
(D) This Hon'ble Court may be pleased to direct the respondents to produce the order of detention alongwith the grounds of detention before this Hon'ble Court for kind perusal of the same.
(E) xxxx Special Civil Application No. 18834 of 2019:
"31(A) xxxxx (B) This Hon'ble Court may be pleased to allow this Special Civil Page 2 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT Application by issuing a writ of mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside at a pre-execution stage the order of detention if any passed by Respondent No.2 under the provisions of the PASA Act on basis of the two offences registered with Savarkundla Rural Police Station, Amreli, at Annexure-A and Annexure-B. (C) This Hon'ble Court may be pleased to direct respondents, and/or their agents, servants, persons, employees etc. for not executing the order of detention till the admission, hearing and final disposal of this petition and thus to stay further proceedings.
(D) This Hon'ble Court may be pleased to direct the respondents to produce the order of detention alongwith the grounds of detention before this Hon'ble Court for kind perusal of the same.
(E) xxxx
2. It can be noticed from the prayer clause (B) itself and the averments made in the petition that the petitioner is unable to affirm the existence of the order of detention and that is why the word "detention" is suffixed by "if any". The question therefore in this petition is whether the petition where the order of detention is not in the knowledge of the petitioner can be entertained on the wide perspective that, in absence of entertaining the petition, the right of the petitioner under Article 21 of the Constitution of India would be at stake.
3. In SCA No. 18834 of 2019 the apprehension of the petitioner being detained is rested on two FIRs principally attributing to the petitioner for the offences under IPC whereas in other two cases the apprehension is based on solitary FIR in each case.
4. The question whether the petitions could be entertained in absence of the order of detention came up before this court in number of cases wherein following order was passed.
"The petition has been instituted at the stage where the order of detention has not been passed at all.
In view of the decision rendered in case of Piyush @ Lakahn Manojbhai Bhavsar Vs. The Police Commissioner and others in Letters Patent Appeal No.1281 of 2018 decided on 08.10.2018 holding that: "... While it is Page 3 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT open for the appellant to file such a petition, when the order of detention is passed, if there is any ground available to challenge the same before the same is executed, but at the same time, if order of detention is not passed under the provisions of PASA Act, no such petition can be maintained seeking the relief as sought for.", this petition instituted at pre-detention order stage cannot be entertained. Hence, rejected at this stage."
5. Learned counsel for the petitioners has relied upon the following decisions:
(1) SUBHASH POPATLAL DAVE v. UNION OF INDIA AND ANOTHER [(2014) 1 SCC 280].
(2) VIJAYSINH @ GATTI PRUTHVISINH RATHOD v. STATE OF GUJARAT AND OTHERS [2015(1) GLR 703].
(3) REKHA v. STATE OF TAMIL NADU THROUGH SECRETARY TO GOVERNMENT AND ANOTHER [(2011) 5 SCC 244].
(4) THAKOR VIJAYJI DASHRATHJI v. STATE OF GUJARAT THROUGH SECRETARY AND ONE [LETTERS PATENT APPEAL NO. 1296 OF 2013 DECIDED ON 23.12.2013].
(5) MUSSRATALI @ MUNNA MUSABBARALI PATHAN v. STATE OF GUJARAT AND TWO [LETTERS PATENT APPEAL NO. 968 OF 2015 DECIDED ON 30.06.2015].
(6) DEEPAK BAJAJ v. STATE OF MAHARASHTRA [2009(1) GLH 140]. (7) YUSUF HANIFBHAI QURESHI (GANDHI) v. STATE OF GUJARAT [LETTERS PATENT APPEAL NO. 1296 OF 2013].
(8) MAHENDRASINH MANGALSINH JADEJA v. STATE OF GUJARAT [LETTERS PATENT APPEAL NO. 1495 OF 2013].
(9) KARAN SHARMANBHAI JADEJA v. STATE OF GUJARAT AND TWO [SPECIAL CIVIL APPLICATION NO. 536 OF 2015].
5.1 Relying upon aforesaid decisions, learned counsel for the petitioner has made the following submissions which are broadly enumerated hereunder:
Page 4 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020C/SCA/19009/2019 JUDGMENT (1) that the order rendered in Piyush @ Lakahn Manojbhai Bhavsar Vs. The Police Commissioner and others in Letters Patent Appeal No.1281 of 2018 decided on 08.10.2018 is per incuriam as it does not consider the enumerated cases holding that the petition at a pre-detention/pre-execution stage would be maintainable.
(2) unless the petition is filed and the respondent discloses the detention order to the court, the petitioner would not be in access of or would not know the order of detention and therefore the petition must be entertained even in absence of order of detention.
(3) that the grounds indicated in Alka Ghadia (supra) for challenging the detention at the pre-detention/pre-execution stage are not exhaustive but only illustrative and therefore also the petition at a pre-detention/pre-execution stage should be maintained on the grounds indicated therein.
(4) The scope and ambit of Article 226 of the Constitution of India is wide enough to call for the detention order with the set of papers so as to satisfy itself as to legality and validity of the order of detention.
(5) since, as per the settled law, the petitioner would not have access to the order of detention, it would not be possible for him to affirm or dispute its existence by appropriate averments in the petition, and if for the said reason the petitioner is non- suited, the very purpose of challenge to the pre-execution would be frustrated as immediately on serving of the order, the petitioner would be taken into custody.
(6) that the authorities have been passing the detention order in a most casual manner deserving no respect from this court even as they have continuously been disrespecting the lesson given to them by the High Court and the Supreme Court pointing out the circumstances under which the orders of detention would be justified.
6. Per contra; learned AGP submitted that the FIR was registered against the petitioner in 2016 which would not justify the apprehension of the order of detention at the hands of the petitioner in the year 2020. Learned AGP also invited attention of Page 5 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT this court to the decisions in Letters Patent Appeal No. 108 of 2020 decided on 18.06.2020 in Mukeshbhai Versibhai Desai Through his brother Bharatbhai Versibhai v. State of Gujarat, in Piyush @ Lakahn Manojbhai Bhavsar Vs. The Police Commissioner and others in Letters Patent Appeal No.1281 of 2018 decided on 08.10.2018, in Additional Secretary to the Government of India and others v. Smt. Alka Subhash Ghadia and another [1992 Supp. (1) SCC 496] and also the decision rendered by this court in Special Civil Application No. 7755 of 2020 and allied matters decided on 26.06.2020 in the case of Khalilahmed Abdul Hamid Ansari with the submission that, in absence of order of detention the petition would not lie and at the pre-execution stage the jurisdiction can be exercised in rarest of rare cases and only on limited grounds.
7. Having considered the rival submissions, this court, at the outset, would lay emphasis on the real nature of controversy in the petition. The proposition that after the order of detention and before its execution the petition would lie on the grounds indicated in numerous pronouncements cannot be disputed; the real controversy to be answered in this petition whether in cases where no order of detention is passed or where the petitioner has no knowledge about the existence of the order of detention, the petition could be maintained. Almost all the pronouncements relied upon by the learned counsel for the petitioner note the existence of the order of detention and proceed to decide the case to answer the question as to whether a petition would lie before its execution and therefore the proposition laid in the said pronouncements cannot be imported into the facts of the present case to answer the real controversy above-referred. The Division Bench in Piyush @ Lakahn Manojbhai Bhavsar Vs. The Police Commissioner and others in Letters Patent Appeal No.1281 of 2018 decided on 08.10.2018 clearly answered the said controversy. The order refers to two things: (i) that the petition would lie at pre- execution stage i.e. where the detention order is made but not executed, (ii) that in absence of order of detention the petition would not be entertained. Thus, in the opinion of this court, the Division Bench was aware of the legal position borne from Page 6 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT the series of cases beginning from Alka Ghadia (supra) and therefore the observations by the Division Bench cannot be termed as per incuriam and argument to the contrary deserves no merit.
8. Having perused the enumerated judgments with the assistance from the rival sides, this court is unable to find the ratio in the decisions that the petition would be maintainable at a stage where no order of detention is made. Although in few cases the co-ordinate bench by interim order send the inquiry to the respondent about the existence of the order of detention; it cannot be said that the law was laid thereby. True it is that the discretion under Article 226 of the Constitution of India is comprehensive enough to annul the action intending to inhibit fundamental right of a person, with impurity; at the same time by self-imposed restrictions, the discretion has always been exercised with circumspection and the discretion is better avoided where its exercise may prejudice or likely to prejudice the public interest.
9. The reasons why the court would not exercise the discretion in cases where the order of detention is not made is obvious. In such cases, obviously the person would not know the reason or the grounds therefor and thus would have no premise to assail its validity or legality. This court may emphasis on the public interest as distinguished from the individual interest. It would be presumed that the authority would exercise its power in a lawful manner to achieve the object and purpose of law. Contrary presumption would paralyse the public administration, as based on such presumption the court would be required to view every act of public functionary with suspicion. Not only the public administration would be paralysed, it will open the pandora's box adding unnecessary burden upon the court. Secrecy is the backbone of consideration for detention and if the proposed detenu is allowed to know, through the window of Article 226 of the Constitution of India about the existence of detention order, a serious prejudice may be caused to the public interest as the proposed detenu may successfully avoid the detention even in genuine cases and thus the object of detention law, of preventing the prejudice to the maintenance of public order would be frustrated. Therefore to maintain the petition, the proposed detenu or the one who Page 7 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT apprehends the detention would be bound to; not only make suitable averments in the petition affirming the existence of the order, but also put the case within four corners of the exceptions indicated in Alka Subhash Ghadia (supra) and other cases. Mere filing of the FIR against the petitioner would not be a justifiable ground for him to rush to the court with the apprehension that the detention order would be passed, and if such apprehension is treated as a valid apprehension, accused would be flocking with the invocation of Article 226 of the Constitution of India converting the said provision into a window of inquiry to know whether the order of detention against them exists or not.
10. The submission that the authorities have been casually passing illegal orders of detention again is no ground for maintaining the petition for the simple reason that the redressal of such grievance would lie somewhere else rather than under Article 226 of the Constitution of India. Apropos the said grievance however, this court at this stage would refer to some of the observations made by co-ordinate bench in Special Civil Application No. 536 of 2015 in KARAN SARMANBHAI JADEJA v. STATE OF GUJARAT AND TWO OTHERS which are thus:
"The matter does not rest over here. I would like to observe something in addition to what I have stated above. I intend to say so keeping in mind that everyday not less than twenty-five matters are taken up for final hearing wherein the detention orders are challenged. I have observed that despite best of the efforts made by the learned AGPs appearing for the State, they are unable to defend the orders of detention. The reason for the same is plain and simple. The detention orders are often being passed just for the sake of passing and that too without achieving any object in that regard. The law so far as the preventive detention is concerned, is now as clear as a noon day. There are catena of decisions of the Supreme Court. There are catena of decisions of the Supreme Court taking the view that the orders of preventive detention should not be passed in a casual manner. The powers of preventive detention being drastic and when the liberty of the citizen is put within the reach of the Authority, the action must comply not only with the substantial requirements of law, but it should be with those forms which alone can indicate the substance.Page 8 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020
C/SCA/19009/2019 JUDGMENT The contravention of law always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing "law and order", the next representing, "public order" and the smallest representing "security of State". An act may affect "law and order" but not "public order", just as an act may affect "public order" but not "security of the State." Therefore, one must be careful in using these expressions.
The Gujarat Prevention of Anti-social Activities Act, 1985 came into force from 27th May 1985. The Presidential assent to the same was accorded on 1st August 1985. The same was enacted to provide for the preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers for preventing their anti-social and dangerous activities prejudicial to the maintenance of the public order. In exercise of the powers conferred by sub- section (2) of Section 3 of the Gujarat Prevention of Anti- social Activities Ordinance, 1985, the Government of Gujarat directed that the Commissioner of Police, Ahmedabad/Baroda/ Surat/Rajkot may also, if satisfied as provided in sub-section (1) of the said Section 3, exercise within the local limits of his jurisdiction, the powers conferred by the said sub-section (1). In the same manner, the powers were conferred upon the District Magistrates too. Thus, the Notifications which were issued way back in the year 1985 conferring the powers of detention upon the Commissioner/District Magistrate continues even as on today and there is nothing on record to even prima-
facie suggest whether the Government has made any periodical review of the circumstance prevailing/likely to prevail in the areas within the local limits of the jurisdiction of the Commissioner of Police or the District Magistrate, as the case may be. This, in my opinion, is a very dangerous situation. I may quote with profit a decision of the Supreme Court in the case of Abhay Shridhar Ambulkar Vs. S.V. Bhave, the Commissioner of Police, reported in AIR 1991 SC 397. In the said case, the Supreme Court was dealing with a matter relating to the preventive detention under the National Security Act (65 of 1980). The principal argument before the Supreme Court was that there was no valid conferment of power on the Commissioner to make the detention order. It was also argued that the Government had issued the order without applying its mind and by simply reproducing the words of sub-
Page 9 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020C/SCA/19009/2019 JUDGMENT section (3) of Section 3. The satisfaction of the Government for conferring the power on the Commissioner for the purpose in question was purported to have been reached on the circumstances prevailing on the date of the order or likely to prevail during the three months period in question. It was also argued that the Government was not certain which of the alternative circumstances was relevant for reaching the subjective satisfaction and it was submitted that it had acted in a mechanical manner without application of mind. In that context, the observations of the Supreme Court are worth taking note of :
"The power to make an order of detention primarily rests with the Central Government or the State Government. The State Government, however, being satisfied with certain circumstances may order that the District Magistrate or the Commissioner of Police may also make an order of detention in respect of matters relating to the security of the State or Public Order or maintenance of supplies and services essential to the community against any person within their respective areas. The State Government can make such an order which shall not in the first instance exceed three months but it may extend such period from time to time making fresh order for a further period against not exceeding three months at one time. It may be noted that the conferment of this power on the District Magistrate or the Commissioner of Police is not to the exclusion of but in addition to the powers of the Government to exercise its own power. 7. The first paragraph of the order dated 6th January 1990 states that Government was satisfied that having regard to the circumstances prevailing or likely to prevail in Greater Bombay Police Commissionerate it is necessary that during the period commencing on 30th January 1990 to 29th April 1990 that the Commissioner should also exercise the powers conferred under subsection (2) of Section 3 of the Act. This is indeed no more than a reproduction of the terms of subsection (3) of Section 3. But sub-section (3) refers to two independent circumstances namely : (i) the prevailing circumstances, (ii) the circumstances that are likely to prevail. The former evidently means circumstances in presenti that is prevalent on the date of the order and the latter means the anticipated circumstances in future. If the Government wants that the District Magistrate or the Commissioner of Police should also exercise the powers for the current period, it has to satisfy itself with the Page 10 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT prevailing circumstances. If the Government wants that the District Magistrate or the Commissioner of Police should also exercise the powers during the future period, it must be satisfied with the circumstances that are likely to prevail during that period. This seems to be the mandate of sub- section (3).8. Subjective satisfaction for the exercise of power under sub-section (3) of Section 3 must be based on circumstances prevailing at the date of the order or likely to prevail at a future date. The period during which the District Magistrate or the Commissioner of Police, as the case may be, is to exercise the power provided by subsection (2) of Section 3 is to be specified in the order which would depend on the existence of circumstances in presenti or at a future date. If the subjective satisfaction is based on circumstances prevailing at the date of the order, the choice of period, which must not exceed three months, would have to be determined from the date of the order. If the conferment of power is, considered necessary because of circumstances likely to prevail during the future period, the duration for the exercise of power must be relatable to the apprehended circumstances. Therefore, the specification of the period during which the District Magistrate or Commissioner of Police is to exercise power under sub-section (2) of Section 3 would depend on the subjective satisfaction as to the existence of the circumstances in presenti or future. Since very drastic powers of detention without trial are to be conferred on subordinate officers, the State Government is expected to apply its mind and make a careful choice regarding the period during which such power shall be exercised by the subordinate officers, which would solely depend on the circumstances prevailing or likely to prevail. The subjective satisfaction cannot be lightly recorded by reproducing both the alternative clauses of the statute. The subjective satisfaction on the prevailing Circumstances, or circumstances that are likely to prevail at a future date is the sine qua non for the exercise of power. The use of the word 'or' signifies either of the two situations for different periods. That, however, is not to say that the power cannot be exercised for a future period by taking into consideration circumstances prevailing on the date of the order as well as circumstances likely to prevail ,in future. The latter may stem from the former. For example, there may be disturbances on the date of the order and the same situation may be visualised at a future date also in which case the power may be conferred on the subordinate Page 11 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT officers keeping both the factors in mind; but in that case the two circumstances would have to be joined by the conjunctive word 'and' not the disjunctive word 'or'. The use of the disjunctive word 'or' in the impugned Government order only indicates non-application of mind and obscurity in thought. The obscurity in thought inexorably leads to obscurity in language. Apparently, the Government seems to be uncertain as to the relevant circumstances to be taken into consideration, and that appears to be the reason why they have used the disjunctive word "or" in the impugned order."
Thus, the decision of the Supreme Court referred to above while dealing with the conferment of powers under subsection (3) of Section 3 of the N.S Act, makes it clear that the conferment of power has to be specific either with regard to the circumstances prevailing or likely to prevail and not for both. In that case, even order dated 6.1.1990 of the State Government conferring the power on the Commissioner of Police recorded the satisfaction of the Government of Maharashtra that having regard to the circumstances prevailing or likely to prevail in the Greater Bombay Police Commissionerate, it was necessary that during the period commencing on January 30, 1990 and ending on April 21, 1990, the Commissioner of Police shall exercise the powers conferred by sub-section (2) of Section 3 of the Act. The same was not approved by the Supreme Court. I have also noticed something very important so far as the PASA Act is concerned. I have tried to compare the provisions of the PASA Act, 1985 with that of the National Security Act, 1980, the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug offenders Act, 1981, the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Gamblers, Gundas, Immoral Page 29 of 35 Traffic Offenders and Slum-grabbers Act, 1985 and the Uttar Pradesh Gangster and Antisocial Activities (Prevention) Act, 1986. Excluding the PASA Act of 1985 with which I am concerned, one common provision which I find in the other Acts is the proviso to Section 3 (2) of the Act, which reads as under:-
"Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by Page 12 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT any period not exceeding three months at any one time."
In the Act of 1985, I do not find any such proviso. That is the reason why the Notification of the year 1985 still is in force and on the basis of which even as on today the Police Commissioners and the District Magistrates exercise their powers of the preventive detention. It necessarily implies that from 1985 till this date, there does not appear to be any review of the delegation of the power. However, at this stage, I must also refer to a decision of the Supreme Court in the case of Navalshankar Ishwarlal Dave Vs. State of Gujarat, reported in 1994 Criminal Law Journal 2170(1), wherein the Supreme Court was dealing with a matter relating to the preventive detention under PASA and considered the contention raised on behalf of the detenu that the delegation of the power to the authorized officer was illegal or invalid. The Supreme Court made the following observations as contained in paragraph 3 of the judgment. Paragraph 3 reads as under:-
"3. Section 3(2) of PASA empowers the State Govt. that having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate and the Commissioners of Police, by an order in writing direct that District Magistrate, the Commissioner of Police, may also, if satisfied the existence of conditions envisaged in sub-sec. (1) of S. 3 to exercise the powers of the State Govt. to detain any person. The contention of Shri Ganesh, the learned counsel for the appellants is that the blanket power of delegation is a negation of satisfaction on the part of the State Govt. and likely to be abused by the District Magistrate or the Commissioner of Police. The Legislature entrusted the power to the State Govt. and if need be only selectively but not blanket delegation is permissible. After the issue of the notification in 1985 no review thereafter was done. The order of delegation made by the State Govt. without application of mind was,therefore, illegal and invalid and the sequator detention made became illegal. We find no force in the contention. PASA was made in exercise of the power under entry 3 of concurrent List III of 7th Schedule and reserved for consideration of the President and received his assent. So it is a valid law. It envisages that the State Govt. under S. 3(1) would exercise the power of detention or authorize an officer under S. 3(2) to detain bootlegger, dangerous person, Page 13 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT drug offender, immoral traffic offender and property grabber. The PASA was made to provide for preventive detention of aforestated persons whose activities were satisfied to be prejudicial to the maintenance of public order. Sub-section (4) of S. 3 declares that a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Explanation thereto postulates that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities by any person referred to in the sub-section (4) directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Therefore, the Act postulates satisfaction on the part of the State Govt. that the dangerous and antisocial activities of any of the aforestated persons shall be deemed to be acting prejudicial to the maintenance of public order whether the person is engaged in or is making preparation for engaging in any activities enumerated in the definition clauses and the public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if the activities directly or indirectly, causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. In the counter affidavit filed on behalf of the State in the High Court and consideration thereof the High Court held that "the situation was found prevailing in the State in the year 1985 where the impact of the activities of various persons mentioned in the preamble with reference to their respective activities has heightened from being anti-
social and dangerous activities to be prejudicial to the maintenance of public order." It is, with a view, to curb those dangerous or anti-social activities, the Govt. considered it appropriate to delegate the power under sub-sec. (2) of S. 3 to the "authorized officer" and the Govt. has stated in the notification that "having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of each of the Page 14 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT District Magistrate specified in the Schedule annexed thereto, the Govt. of Gujarat is satisfied that it is necessary so to do" and accordingly exercised the power under sub-sec. (2) of S. 3 and directed the authorized officers i.e. the District Magistrate of each District specified in the Schedule and also the three Commissioners of Police in the respective Corporations to exercise within their local limits of jurisdiction, the power conferred by sub-see. (1) of S. 3.It is seen that the dangerous or anti-social activities are legislatively recognised to be prejudicial to the maintenance of public order. The enumerated activities hereinbefore referred to are not isolated but being indulged in from time to time adversely affecting the public order and even tempo. The District Magistrate concerned, being the highest Dist. Officer on the spot and the Commissioner of Police in the cities have statutory duty to maintain public order. Therefore, with a view to have then effectively dealt with, to move swiftly where public order is affected or apprehended and to take action expeditiously instead of laying information with the Govt. on each occasion and eagerly awaiting action at State Govt. level, the State Govt. having exercised the power under S. 3(2) conferred on the District Magistrate or the Commissioner the power to order detention under S. 3(1) when he considers or deems necessary to detain any person involved in any of the dangerous or anti-social activities enumerated herein before, prejudicially affecting or "likely to affect the maintenance of public order." The later clause lay emphasis on immediacy and promptitude and the authorised officer on the spot is the best Judge to subjectively satisfy from the facts and ground situation and take preventive measure to maintain public order. The reliance by Shri Ganesh on the decision of this Court reported in A. K. Roy v. Union of India, AIR 1982 SC 710, para 72 has no application in view of the factual background in this Act. So long as the activities of bootlegger, dangerous person, drug offender, immoral traffic offender and property grabber persist within the local limits of the jurisdiction of the concerned District Magistrate and Commissioners of Police, as the case may be, and being directly responsible to maintain public order and to deal with depraved person to prevent anti-social and dangerous activities which affects adversely or are likely to affect adversely the maintenance of public order, the necessity would exist. Therefore, the question of periodical review of delegation order does not appear to be warranted." It appears Page 15 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT that in the said decision, there is no reference of the earlier decision of the Supreme Court in the case of Abhay Shridhar Ambulkar (supra). Be that as it may, even if the periodical review of delegation of the power is not warranted, the same makes the responsibility and duty of the State Government more onerous when it comes to approving the order of detention passed by the Detaining Authority. I find considerable merit in the submission of Mr.Mangukiya, the learned advocate appearing for the petitioner that while exercising the power of confirmation/approval of the order of detention, in accordance with sub-section (3) of Section 3 of the said Act, the State Government owes a duty to apply its mind to the order of detention. The stage of approval should not be treated as an empty formality. The Government owes a duty to see whether the order of detention passed by the Detaining Authority is in accordance with law, more particularly in conformity with the judicial pronouncements of the Supreme Court and the High Court of Gujarat. If the concerned Officer of the State Government had carefully read the present detention order, he might not have approved it at all in light of the said position of law that mere registration of cases under the IPC is no ground to detain a person. The confirmation or the approval to the orders of detention in accordance with sub-section (3) of Section 3 of the PASA Act is an additional safeguard introduced by the statute, and therefore, the power of grant of approval cannot be mechanically exercised in a casual manner. The grant of approval to the order of detention in accordance with sub- section (3) of Section 3 is not an empty formality. The Government must examine whether the order is lawful and when called upon by the Court of law to show its application of mind, there should be something on record for the same. I am informed by the learned AGP that in the year 2014, almost three thousand and odd orders of detention were passed, out of which almost in 50% cases, it was recommended by the Advisory Board constituted under the Act to revoke the order. This itself is suggestive of the fact that the orders of preventive detention are more or less passed in a very casual manner."
11. It may be noted that despite the above observations made by this court as back as on 27.01.2015 apprising the detaining authority the law as to preventive detention and the manner of exercise of its power and their duty to preserve the liberty Page 16 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020 C/SCA/19009/2019 JUDGMENT of the individual while coming heavily upon the real culprits; the observations having fell on the deaf ears, this court is hopeful that such consistency would be maintained and the things are unlikely to improve.
12. For the foregoing reasons, the petitions must fail and are dismissed. Rule is discharged.
(G.R.UDHWANI, J) MOHMMEDSHAHID/SYED/NIRU Page 17 of 17 Downloaded on : Thu Sep 03 22:40:40 IST 2020