Gujarat High Court
Vijaybhai @ Chino Natwarbhai Jaksibhai ... vs State Of Gujarat on 4 November, 2020
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/9974/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9974 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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VIJAYBHAI @ CHINO NATWARBHAI JAKSIBHAI DABHI THROUGH HIS
FATHER NATWARBHAI JAKSIBHAI DABHI
Versus
STATE OF GUJARAT
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Appearance:
MS SUBHADRA G PATEL(656) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MS.JYOTI BHATT, AGP for the State Respondent(s)
RULE SERVED(64) for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI
Date : 29/10/2020-04/11/2020
ORAL JUDGMENT
1. The petitioner has filed the petition through his father challenging the legality and validity of the order dated 21.3.2020 passed by the respondent No.2 Commissioner of Police, Ahmedabad, detaining the petitioner in exercise Page 1 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT of the powers conferred under Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "PASA").
2. It appears from the impugned order of detention that the petitioner was involved in two cases namely FIR being ICR No.86/2019 registered at the Satellite Police Station for the offences punishable under Section 379 and 114 of IPC and the FIR being ICR No.11196022200118/2020, registered at Isanpur Police Station for the offences punishable under Section 307, 323 and 120B of IPC and Section 135 of Gujarat Police Act. The detaining authority - respondent No.1 after considering the papers of investigation in the said FIRs and also the statements of the witnesses recorded in camera, whose identity was not disclosed, came to the conclusion that the petitioner was a "dangerous person" within the meaning of Section 2(C) of the said Act and his activities were likely to affect the maintenance of public order.
3. It is sought to be submitted by the learned Advocate Ms.Subhadra Patel for the petitioner that the impugned order passed by the respondent No.2 is without application of mind and arbitrary, inasmuch as out of the two cases registered against the petitioner, one case pertained to the offence against an individual and in the other case, the petitioner was not named in the FIR, and therefore, it could not be Page 2 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT said that the petitioner was habitual in committing the offences, or was a dangerous person. She has placed heavy reliance on the judgements of Supreme Court in case of Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta, Commissioner of Police & Ors., reported in (1995) 3 SCC 237 and in case of Pushkar Mukherjee & Ors. versus The State Of West Bengal reported in 1970 AIR 852 to submit that maintenance of public order was different from law and order and that in case of offence against an individual, public order could not be said to have been disturbed. Ms.Patel has relied upon the unreported decision of the Division Bench of this Court in case of Vijay @ Ballu Bharatbhai Ramanbhai Patni Vs. State of Gujarat (In LPA No.454 of 2020 dt. 31.8.2020).
4. However, the learned AGP Ms.Bhatt for the respondent supporting the impugned order submitted that the respondent authorities, after having been satisfied that the petitioner was a "dangerous person" and his activities were likely to affect the maintenance of the public order, had passed the impugned order of detention and that the Court should not interfere with the subjective satisfaction arrived at by the respondent authorities.
5. On 29.10.2020, when the Court was in the midst of the dictation, Ms.Patel requested the Court to adjourn the further dictation as she wanted Page 3 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT to cite more judgements. The dictation was resumed on 4.11.2020 after hearing Ms.Patel.
6. In the opinion of the Court, the Law of detention is very well settled by the Supreme Court in catena of decisions. As the long title of the said Act suggests, the said Act has been enacted to provide for the preventive detention of bootleggers, dangerous persons, drug offenders, immoral trafficking offenders, and property grabbers for preventing their anti social and dangerous activities prejudicial to the maintenance of public order. The definition of the "dangerous person" as contained in Section 2(c) reads as under : "dangerous person" means a person, who either by himself or as a member of leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959."
7. Section 3 of the Act empowers the State Government and the authorities authorized by the State Government to detain any person on being satisfied that he is acting in any manner prejudicial to the maintenance of public order, as contemplated in the said provision.
8. Section 9 provides inter alia that the grounds of order of detention have to be communicated to the detenu as soon as may be but not later than Page 4 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT seven days from the date of detention and detenu should be afforded the earliest opportunity to make the representation against the order of the State Government. Subsection (2) of Section 9 further provides that nothing in subsection (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
9. The Constitution Bench in the case of The State of Bombay versus Atma Ram Sridhar Vaidhya reported in AIR 1951 SC 157, while considering the similar provisions contained in the Prevention of Detention Act, 1950, had held inter alia that the preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making an order may not have full detailed information and the material, which it may have, may not be strictly admissible in evidence under the Evidence Act. It is the satisfaction of the Government on the point which alone is necessary to be established, of course the satisfaction must be based on some grounds. It is also observed that the subjective decision of the Government can not be substituted by an objective test in a Court of law. The precise observations are reproduced hereunder : "It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention Page 5 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3 therefore before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a Page 6 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter mine if it would have came to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government."
10. The three Judge Bench in the case of Pushkar Mukherjee & Ors. versus The State Of West Bengal reported in AIR 1970 SC 852, again following the legal position laid down in the above decision, held that the reasonableness of the satisfaction of the detaining authority can not be questioned in a Court of law and the adequacy of material on which the said satisfaction purports to rest also can not be examined in a Court of law. Of course, if the grounds supplied to the detenu Page 7 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT are so vague that they would virtually take away right of the detenu of his statutory right to make effective representation, then such order may be held invalid. In paragraph 9 of the said decision, it has been observed as under: "9. It will be noticed that before an order of detention can be validly made by the detaining authorities specified by s. 3(2) of the Act, the authority must be satisfied that the detention of the person is necessary in order to prevent him from acting in any prejudicial manner as indicated in cls. (i) to (iii) of s. 3(1) (a). It is wellsettled that the satisfaction of the detaining authority to which s. 3(1 )(a) refers is a subjective satisfaction, and so is not justifiable. Therefore it would not be open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It would not be open, for instance, to the detenu to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law. That is the effect of the true legal position in regard to the satisfaction contemplated by s. 3(1)(a) of the Act(See the decision of this Court in The State of Bombay v. Atma Ram Sridhar Vaidya (1). But there is no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of cls. (i) to
(iii) of s. 3(1)(a) and in that sense arc foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge 'and the detention order liable to be quashed. Similarly, if some of the grounds supplied to Page 8 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation, that again may make the order of detention invalid. If, however, the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be considered under s. 3 ( 1 ) ( a ) of the Act, it would not be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is not reasonably based on any of the said grounds."
11. The ratio of aforestated judgments have also been followed in number of cases including in case of Amanulla Khan Kudeatalla Khan Pathan versus State of Gujarat and Others reported in 1999 (5) SCC 613, wherein the Supreme Court observed that the satisfaction of the detaining authority on consideration of the activities of the detenu and on offering an opinion that the activities are such which affect the maintenance of the public order, and as such it is necessary to put the defence under detention can not be interfered with by the Court of law merely on the assertion of the detenu. It is not required to be stated in the ground of detention as to why the Detaining Authority has formed the opinion that the activities in question cannot be adequately dealt with under normal criminal law.
12. From the aforestated legal position, it is clear that it is not open to the detenu to ask the Court to consider the question as to whether the satisfaction of the detaining authority can Page 9 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT be justified by application of objective tests. It would not be open to the detenu to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority also cannot be questioned in a Court of law, nor the adequacy of the material on which the said satisfaction purports to rest can be examined in a Court of law. However, if the grounds supplied to the detenu are so vague that they would virtually deny him of his statutory right of making representation, such order may be rendered invalid.
13. Thus, without entering into the arena of the subjective satisfaction of the detaining authority as also the sufficiency of the material relying upon which the impugned order is passed, let us examine whether the grounds or any of the grounds supplied to the petitioner detenu suffers from any kind of vagueness.
14. In the instant case, the respondent detaining authority has passed the impugned order relying upon the two cases registered against the petitioner; one for the offence punishable under Section 379 and 114 of IPC registered at Satellite Police Station, being ICR No.86/2019 and second for the offence punishable under Section 307, 323 and 120B of IPC registered at Page 10 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT Isanpur Police Station, being ICR No.11196022200118/2020. Additionally the respondent detaining authority has relied upon two statements of the witnesses whose names have not been disclosed, presumably invoking Section 9(2) of the Act. It is required to be noted that in both the cases, the chargesheets have been filed against the petitioner, and therefore, a prima facie involvement of the petitioner is established. The two witnesses whose names have not been disclosed, have also specifically named the petitioner in their respective statements while narrating the incidents which happened with them. One had stated that the petitioner had tried to extort money from him by giving kick blows and showing knife as a result thereof a crowd had gathered there and an atmosphere of fear was created. The other witness has also made similar allegation that he was given kick blows and fist blows by the petitioner in the public place as a result thereof, many businessmen had gathered there, however, because of the fear of the petitioner nobody had tried to rescue him (the witness). Thus, the detaining authority while giving reasons for detention has considered the said two cases registered against the petitioner and the statements of the witnesses for coming to the conclusion that the petitioner was a dangerous person and his activities were likely to adversely affect the maintenance of the Page 11 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT public order. The grounds mentioned in the impugned order are absolutely clear and unambiguous.
15. The learned Advocate Ms.Patel has heavily relied upon the decisions of the Supreme Court in case of Pushkar Mukherjee & Ors. versus The State Of West Bengal (supra), as also Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta, Commissioner of Police & Ors., reported in (1995) 3 SCC 237 to submit that even if the allegations made in the two cases are treated as violation of the ordinary criminal law, they can not be termed as prejudicial to the maintenance of public order. There cannot any disagreement to the proposition of l aw laid down in the said decisions that the expression "public order" does not mean the same thing as "law and order". The difference between the concept of "Public order" and "law and order" is similar to the definition between "public" and "private" crimes in the realm of jurisprudence. However, the Supreme Court in case of Amanulla Khan Kudeatalla Khan Pathan versus State of Gujarat and Others (supra) referring the said case of Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta, Commissioner of Police & Ors. (supra), observed as under: "We are unable to appreciate this contention of the learned counsel for the detenu inasmuch as even an activity violating an ordinary legal Page 12 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of society that determines whether the activities can be said to be prejudicial to the maintenance of public order or not. Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta, Commissioner of Police & Ors., 1995(3) SCC 237, it has been held by this court that in order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order, the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of law and order or it amounts to breach of public order. Applying the ratio of the aforesaid decision to the facts of the present case we find that the activities of the detenu by trying to extort money from ordinary citizens by putting them to fear of death and on their refusal to part with the money to drag them and torture them on public road undoubtedly affected the even tempo of life of the society and, therefore such activities cannot be said to be a mere disturbance of law and order. In our considered opinion the activities of the detenu are such that the detaining authority was satisfied that such activities amount to disturbance of public order and to prevent such disturbance the order of detention was passed."
16. In the case on hand, the activities of the Page 13 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021 C/SCA/9974/2020 JUDGMENT detenu trying to extort money from the ordinary citizens by putting them under the fear of death and on their refusal to part with the money, torture them on public road, undoubtedly would affect the maintenance of public order and such activities cannot be said to be a mere disobedience of law and order. The learned Advocate for the petitioner has not alleged about mala fide intention on the part of the detaining authority. The detaining authority for the reasons stated in the order having been satisfied that the petitioner is a dangerous person and his activities are likely to adversely affect the maintenance of public order has passed the order of detention, which does not require any interference of this Court.
17. In that view of the matter, the Court does not find any substance in the present petition and the same is dismissed.
Sd/-
(BELA M. TRIVEDI, J) SINDHU NAIR/ VINOD Page 14 of 14 Downloaded on : Fri Feb 26 08:14:10 IST 2021