Gujarat High Court
Hiraben Sadashiv Pawar vs Commissioner Of Police And Ors. on 19 August, 1988
Equivalent citations: (1989)1GLR27
JUDGMENT B.S. Kapadia, J.
1 The petitioner Hiraben Sadashiv Pawar, who is the detenu has filed the present petition for a writ of habeas corpus with a prayer for setting aside the impugned order of detention passed against her and for setting her at liberty forthwith.
2. The Commissioner of Police, Baroda City, on his being satisfied with the respect to the present petitioner that with a view to preventing her from acting in any manner prejudicial to the maintenance of public order in Baroda City it is necessary to make an order directing that she be detained, has passed the impugned order on 1-3-1988 in exercise of the powers conferred on him by Sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as 'the Act'). The said order is served on the petitioner on the same day and she was detained also on the same day. The petitioner was also served with the grounds of detention.
3. On perusal of the grounds it appears that there are about six prohibition cases fitted against her. Two cases are of the year 1983 and they are in respect of the offences punishable under Sections 66(1)(B) and 65E of the Bombay Prohibition Act. One case is of the year 1984 and it is for the similar offences under the Bombay Prohibition Act. There is also an offence registered against her in the year 1986 under the Bombay Prohibition Act. Two cases registered against the petitioner are of the year 1987 under the provisions of the Bombay Prohibition Act. It appears that in all the aforesaid cases large quantity of country liquor was taken possession of from the petitioner-detenu by the Police. It is also stated in the ground that she is carrying on bootlegging activities through her hired and salaried persons and similar six cases are also filed against her servants. There are six witnesses who have given statements about the petitioner's bootlegging activities and the last statement was recorded on 31-12-1987.
4. On the basis of the aforesaid material the detaining authority was satisfied about the bootlegging activities of the present petitioner before arriving at the satisfaction required under Sub-section (1) of Section 3 of the Act. The detaining authority has also taken into consideration the other alternative remedies like prosecution, externment, bond, etc. in the grounds and he was of the opinion that the said alternative steps have proved ineffective and therefore, as a last alternative he has passed the detention order against the present petitioner.
5. It may be stated that various grounds have raised in the petition challenging the legality and validity of the detention order. However, Mr. Bharat Dave, learned Advocate for the petitioner has pressed before us the following grounds:
(1) That the detaining authority has not properly considered the aspects of bond and externment before arriving at the required satisfaction and therefore, the detention order is bad.
(2) That there is no material on record to show that public peace is disturbed and hence the satisfaction arrived at by the detaining authority that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order it was necessary to detain her, is bad and illegal.
(3) That the cases mentioned in the grounds are of the years 1983, 1984, 1985, 1986 and 1987 while the order of detention is passed on 1-3-1988 and therefore, there is delay in passing the detention order and thereby the order of detention becomes bad and illegal.
(4) That the Advisory Board has to submit its report to the State Government within seven weeks from the date of detention of the detenu and that the said requirement has not been complied with in this case and therefore, also the continued detention is bad.
6. Dealing with the first point it may be stated that this point is raised by the petitioner in Para 7 of the petition wherein she has also contended about circumventing of ordinary process of criminal prosecution, but at the time of bearing that point is not pressed by Mr. Dave. He only pressed the aforesaid point that the detaining authority has not properly considered the other alternative steps of externment and taking of bond under the provisions of the ordinary law.
7. The detaining authority has filed affidavit-in-reply on this point and in Para 8 of the said reply it is clearly stated as under:
...I deny that I have not properly considered the other alternative remedies of prosecution and/or externment or taking bond under the provisions of the Act and has passed the order of detention without any application of mind. I say that as mentioned in the grounds of detention, actions/steps against the petitioner under the ordinary law of lands were already taken, but as the same were proved ineffective. I was required to resort to the provisions of the PASA Act in order to immediate curb the nefarious/illegal activities of the petitioner, which were prejudicial to the maintenance of public order. I say that the action under Section 56 of the Bombay Police Act had been taken against the petitioner and she was externed from the Baroda City, but the State Government has cancelled the order of externment in appeal....
The affidavit-in-reply clearly discloses that the detaining authority has subjectively satisfied itself with regard to the alternative steps and has applied its mind on that aspect.
8. During the course of argument it is submitted by Mr. Dave that though there is reference about the prosecution as also externment proceedings in the grounds, but there is no reference whatsoever about the proceedings for taking bond and therefore, the Court should look into the original file.
9. It may be stated that as mentioned above, the detaining authority has applied its mind on this aspect and specifically denied the averments made in the petition in this regard. The averments made in the affidavit-in-reply have not been controverted by filing any affidavit-in-rejoinder by the petitioner. Once when the detaining authority states on oath about its applying mind on the point of taking bond, there is no question of disbelieving the word of the detaining authority particularly when it has not been challenged. Under the circumstances there is no need to refer to the file on this point. It can also be considered from different angle namely, the externment order was already passed against the present petitioner in the year 1984 but the said order has been subsequently set aside by the State Government in appeal in the year 1985. Still however, the present petitioner has continued her bootlegging activities even in the years 1986-87 and 1987-88. When that is so, the action of externment has also been proved to be ineffective so far as the present petitioner is concerned. When the alternative step of externment has become ineffective the action of taking bond is still less drastic action and therefore, it need not be specifically considered. However, in the present case as stated earlier the detaining authority has considered about taking of the bond.
10. In this connection it would be profitable to refer to the judgment of the Supreme Court in the case of Bhim Sen and Ors. v. State of Punjab wherein a statement of fact contained in the affidavit filed in the Court by the detaining authority was disputed. Still however, the Supreme Court in the said case has observed that the matter has to be considered by the Advisory Board and that the question of truth of that statement is not within the jurisdiction of the Court to decide. In the said case one of the appellants was the Secretary of one Corporation and another was a Salesman in one of the firms. On their behalf it was urged that they could not indulge in the black marketing activities. In the aforesaid facts the Supreme Court has observed as under:
...We are unable to accept this contention in view of what is stated in the affidavits of the District Magistrate. It is therefore pointed out that in addition to being a secretary or a clerk and in those capacities actively participating in the blackmarket activities of their principle, they were themselves indulging in blackmarket activities in cloth. If these and other facts in respect of the appellants are disputed the matter will be considered by the Advisory Board. The question of the truth of those statements, however, is not within the jurisdiction of this Court to decide.
In the instant case also the statement is made by the detaining authority in the affidavit-in-reply that he had also considered the aspect of taking bond of the petitioner before arriving at the required satisfaction and when that statement is not challenged by the petitioner by filing affidavit-in-rejoinder there is no question of referring to the file on the point. In that view of the matter we do not find any merit in this point.
11. Mr. Dave then contended that taking the entire material into consideration there is no material on the point of breach of public peace and therefore, there is no question of breach of public order. He submits that the Supreme Court in the earlier cases of Dr. Manohar Lohia and subsequent cases has well defined what is "public order" and unless there is breach of public peace or public tranquility and unless even the tempo of public life is disturbed there would not be breach of public order and therefore, the detaining authority has wrongly come to the subjective satisfaction on the point of detaining the present petitioner.
12. Mr. R.R. Tripathi, learned A.G.P. for the respondents has submitted that in the cases under the provisions of the Act (Gujarat PASA Act) for the purpose of Section 3 enlarged meaning is given in the explanation to Sub-section (4) of said Section and that Sub-section (4) of Section 3 of the Act provides a legal fiction for the phrase "acting in any manner prejudicial to the maintenance of public order" and the said explanation inter alia also provides a legal fiction for adversely effecting the public order. He therefore, submits that in view of the special provisions of the Act the general meaning given by the Supreme Court in the earlier cases need not be applied in the present case because of the enlarged meaning given in the explanation to Sub-section (4) of Section 3 of the Act. In this connection he has drawn our attention to the judgment of this very Division Bench in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat and Anr. 1988 (1) GLH 140 : 1988 (1) GLR 283 wherein the aforesaid Sub-section (4) of Section 3 of the Act along with its explanation was considered.
13. In the said case after accepting the argument on behalf of the respondents on the point and after considering Sub-section (4) of Section 3 along with its explanation the order of detention was upheld and the petition was dismissed. In the said case it was also observed that the fact that the Bombay Prohibition Act is in force in the State of Gujarat presumes that liquor adversely affects the health of the public and further looking to the statements of persons in the said case as well as looking to the quantum of liquor which was seized in the said case it was held that it cannot be said that the detaining authority had no material before him for arriving at the subjective satisfaction on the point that the activities of the said petitioner were likely to create widespread danger to public health. The said matter was taken to the Supreme Court and the Supreme Court has decided the said case vide its judgment reported in AIR 1988 SC 1255. In the said judgment in Para 2 the Supreme Court has observed as under:
2. It is now an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative, but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, bear, etc. from wine merchants of Vanswada in the State of Rajasthan. But then by engaging himself in such activities he falls within the description of a 'bootlegger' as defined in Section 2(b) and therefore comes within the ambit of Sub-section (1) of Section 3 of the Act by reason of the legal fiction contained in Sub-section (4) thereof.
Further, in Para 14 of the said judgment while considering the contention regarding lack of certainty and precision on the part of detaining authority as to the real purpose of detention and that they were all rolled up into one, the Supreme Court has observed as under:
...The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order. It was not seriously disputed before as that the prejudicial activities carried on by the appellant answer the description of a 'bootlegger' as defined in Sec 2(b) and therefore, he comes within the purview of Sub-section (1) of Section 3 of the Act, by reason of Sub-section (4) thereof. Sub-section (4) of Section 3 with the Explanation appended thereto gives an enlarged meaning to the words acting in any manner prejudicial to the maintenance of public order.
After referring to the quoted words of the District Magistrate on the point of purpose it is further observed by the Supreme Court as under:
In our opinion, these words by way of superscription were wholly unnecessary. They were set out by the District Magistrate presumably because of total prohibition in the State. In future, it would be better for the detaining authority acting under Sections 3(1) and 3(2) of the Act to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar.
14. From the above authorities it is clear that once when the detaining authority is acting under the provisions of the Act he has to keep in mind the enlarged meaning given in explanation to Sub-section (4) of Section 3 of the Act. When the detention order speaks about the detaining authority's satisfaction on the point of necessity of detaining any person (in the present case bootlegger) with a view to preventing him/her from acting in any manner prejudicial to the maintenance of public order, be has always within his mind the enlarged meaning of the phrase "acting in any manner prejudicial to the maintenance of public order" as given in explanation to Sub-section (4) of Section 3. Therefore, when a person is engaged in or is making any preparation for any activities as a bootlegger which affect or likely to affect adversely the maintenance of public order within the enlarged meaning of the explanation of said sub-section he is coming within the scope of Sub-section (1) of Section 3 of the Act. In the instant case there are nearly about six cases filed against the petitioner under the provisions of the Bombay Prohibition Act which clearly disclose that in every case a large quantity of country liquor was seized from the petitioner and she was engaged in the activities of bootlegger. That liquor when consumed by the members of the public or section of the public is causing or likely to cause grave or widespread danger to public health. When the wordings are used in the explanation that directly or indirectly is causing or is likely to cause any widespread danger to public health, it would be a matter of drawing inference by the detaining authority on the material placed before him and it is not necessary that there should be separate material for having satisfaction on that point. The quantity of liquor seized from the petitioner-detenu itself would indicate that country liquor was meant for sale to others and consumption thereof was likely to cause grave and widespread danger to public health.
15. It may also be noted that in the State of Gujarat there is total prohibition and that itself indicates that consumption of liquor and more particularly country liquor is likely to affect public health. Instances are many on the point that persons consuming latha (one kind of country liquor) lose their vision and at times they lose their lives. Therefore, it is not necessary that there should be separate material for the satisfaction of the detaining authority on the point that bootlegging activity is causing or is likely to cause harm or grave danger to the public health. From the material on record for satisfaction of preventing bootlegging activities of the person concerned, the detaining authority can reasonably draw an inference on the aforesaid point. In that view of the matter we do not find any merit in this point also.
16. The third contention raised by Mr. Dave is on the point of delay. He submits that in the present case, cases against the petitioner which are referred to in the grounds of detention are or the years 1983, 1984, 1986 and 1987 and the last case relates to the incident of 22nd July, 1987 while the order of detention is passed on 1-3-1988 and therefore, there is delay in passing the order. The petitioner has raised this point in Para 13 of the petition and submitted that even according to the statements of the witnesses order is passed after the interval of three months and therefore, there is delay in passing the detention order.
17. It may be stated that during the course of arguments Mr. Dave, learned Advocate for the petitioner has pointed out that the last statement in this case was recorded on 31st December 1987 while the order was passed on 1-3-1988 and therefore, within two months of recording of the last statement the present order is passed.
In the affidavit-in-reply filed by Shri M.M. Mehta, Police Commissioner, Vadodara City it is clearly pointed out that the proposal for detention of the detenu was received on 17-1-1988; that as there was no 'Chehra Nishan' in respect of the petitioner in C.R. No. III 1485 of 1985 on 2-1-1988 the proposal was sent back to Sponsoring Authority to comply with the requirement; that as the said requirement was not complied with till 6-2-1988, on 6-2-1988 a reminder was sent to the Sponsoring Authority for the purpose which was sent by-the Sponsoring Authority on 25-2-1988 to his office and thereafter after carefully considering the proposal and after going through the file relating to the petitioner-detenu, he passed the order of detention on 1-3-1988 and therefore, there was no delay in passing the order of detention.
18. It is necessary to keep in mind the principle on the point of delay enunciated by the Supreme Court. In the aforesaid case of Rajendrakumar N. Shah (supra) the Supreme Court has observed as under:
Being conscious that the requirements of Article 22(5) would not be satisfied unless basic facts and materials' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the order of detention was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
It is further observed by the Supreme Court in Para 10 of the said judgment as under:
10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large, resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Court should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view, would not be warranted unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention.
19. Screening the present case in the light of the aforesaid observations the Supreme Court, it would be clear that the present petitioner was carrying on her activities as a bootlegger upto December, 1987 as per the last statement recorded in this case and that thereafter proposal for her preventive detention was sponsored. The petitioner was carrying on this activity from 1983 as per the incidents recorded in the case. These past incidents are relevant factors for arriving at the future prognosis of the petitioner's activities. Therefore, these instances which are continuous every year cannot be said to be 'stale' or illusory and also it cannot be said that there is no real nexus between the said grounds and the impugned order of detention. Under the circumstances as explained in the affidavit-in-reply, there is no delay in passing the impugned order. In that view of the matter we do not find any merit in this point also.
The last contention raised by Mr. Dave for the petitioner is that as per Section 12(1) of the Act it is the duty of the Advisory Board to submit its report to the State Government within a period of seven weeks from the date of detention of the detenu and that has not been done in the present case. This point is raised by the petitioner in Para 9 of the petition and the petitioner called upon the respondents to state the dates on which the papers are placed before the State Government and when such report has been made by the Advisory Board to the State Government.
20. It may be stated that in the affidavit-in-reply filed by Shri P.N. Roy Chaudhary, Deputy Secretary, Home Department, it is stated that the petitioner was actually detained on 1-3-1988; that the State Govt, made a reference to the Advisory Board on 8-3-1988; that the Advisory Board met on 11-4-1988 and the Board gave its report on 15-4-1988 holding that there was sufficient cause for detaining the detenu. It is further stated in Para 8 of the said affidavit-in-reply that after the receipt of the report and the opinion of the Advisory Board the State Govt, confirmed the order of detention on 30-4-1988. However, in this affidavit-in-reply it is not made clear though specifically asked for by the petitioner in Para 9 of the petition, on that date the report of the Advisory Board was submitted to the State Government. Hence we were required to look into the original file on perusal of which it appears that the Advisory Board prepared the report on 15-4-1988 but it was submitted to the State Govt. on 28th April, 1988 and it was received by the State Govt, on 29th April, 1988. In that view of the matter when the detention order was passed on 1-3-1988 the period of seven weeks would be over on 19th April, 1988 and therefore, the report of the Advisory Board should have been submitted to the State Govt, on or before 19th April, 1988 while in the present case that mendatory requirement under Section 12(1) of the Act is not complied with. Therefore, the continued detention of the petitioner becomes illegal and we accept this contention raised on behalf of the petitioner.
21. In result the petition deserves to be allowed only on this point. Accordingly the petition is allowed. The order of detention passed against the petitioner-detenu, holding that the continued detentionis illegal, is hereby quashed and set aside and the petitioner-detenu is ordered to be set at liberty forthwith, if no more required in any other case. Rule is accordingly made absolute.