Gujarat High Court
Ahmed Husan Alias Kalio Shaikh Husen ... vs Commissioner Of Police And Anr. on 3 December, 1987
Equivalent citations: (1988)1GLR350
JUDGMENT A.P. Ravani, J.
1. Petitioner detenu challenges the legality and validity of the detention order dated July 12, 1987 which has been passed by the Commissioner of Police, Ahmedabad City, under the relevant provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as 'the Act').
2. The petitioner has been detained inter alia on the ground that he is a "bootlegger" and his activity as "bootlegger" is adversely affecting the maintenance of public order and, therefore, with a view to preventing him from acting in this manner it was necessary to detain him. The order of detention is challenged inter alia on the ground that the detaining authority himself has not applied his mind to the material on the basis of which the order of detention is passed and has mechanically passed the order. These allegations have in terms been made in para 29 of the petition. In the affidavit in reply filed by the detaining authority the aforesaid allegations are sought to be met with by averments made in paras 41 and 47. There in it is stated that the detaining authority has taken into consideration the lesser drastic measure and has taken into consideration the entire material placed before him and thereafter he has passed the order of detention.
3. In order to verify the facts, we requested the learned Counsel for the respondents to show us the original file and point out to us as to how the proposal for detention was mooted and ultimately passed by the detaining authority. It appears, on going through the original file, that on July 11, 1987, the Police Inspector concerned had made the proposal. On the same day the Superintendent of Police has forwarded the proposal to the Deputy Commissioner of Police. The Deputy Commissioner of Police also has on the same day passed the proposal and forwarded the papers to the detaining authority i.e., the Commissioner of Police, Ahmedabad City. The Superintendent of Police and the Deputy Commissioner of Police have made endorsement in the same file forwarding the papers to the immediate superior authority. After the endorsement is made by the Deputy Commissioner of Police, no endorsement is made by the detaining authority. Nowhere in the file it is recorded that the detaining authority has gone through the papers, considered the material and thereafter he has formed the opinion that it was necessary to detain the petitioner under the relevant provisions of the Act. There is no dispute with regard to the fact that there is no such endorsement on the file indicating the requisite satisfaction having been arrived at by the detaining authority for passing the order of detention. After the endorsement made by the Deputy Commissioner of Police, straight way a copy of the order of detention is there on the file. Of course, the order of detention is signed by the Commissioner of Police, that is, the detaining authority.
4. It is submitted on behalf of the respondents that usually only after perusing the papers and considering the materials placed before him, the detaining authority passes orders and if the detaining authority is of the opinion that the proposal for the detention is to be rejected, the papers are sent back. It is further submitted that in view of the fact that order of detention is passed, it should be treated that the detaining authority has considered the materials and only after having formed an opinion that the order of detention was required to be passed, he has passed the order. It is further submitted that this satisfaction is again reflected in the affidavit in reply and particularly in paras 41 and 47 thereof. Thus, in short, the argument is to consider the facts in reverse direction. Since there is order of detention, it should be held that entire material has been considered and thereafter only the order is passed.
5. We are afraid, the submission cannot be accepted. One of the principal conditions for passing the order of detention is that the detaining authority should arrive at subjective satisfaction on the basis of material placed before him that the detention of a particular individual was necessary under the relevant provisions of law. The requisite satisfaction of the detaining authority should precede the detention order. Therefore, the fact of arriving at the requisite satisfaction must got reflected on the file and that too before the order of detention is passed. If this satisfaction is not reflected on the file and if it is not indicated on the file itself that this satisfaction was arrived at prior to the passing of the order of detention, the order of detention cannot be sustained. Because in such a situation the necessary precondition of passing the order of detention cannot be said to have been fulfilled. This is the requirement of the Gujarat Prevention of Anti-Social Activities Act, 1985 as well as the requirement of Article 22(5) of the Constitution of India. Article 22(5) of the Constitution of India inter alia provides that the detaining authority making an order shall as soon as may be communicate to such person 'the grounds on which the order has been made'. The phrase 'the grounds on which the order has been made' indicates that the grounds of detention should be in existence when the order of detention is passed. The aforesaid phrase also requires that the detaining authority should have considered the material placed before it and should have formed opinion as to the grounds on which the order of detention is to be passed. If these facts are not reflected on the file, then it is difficult to hold that such order can be sustained by stating the facts on oath at a letter date.
6. In this connection, reference may be made in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji reported in AIR (39) 1952 SC 16 wherein the Supreme Court has observed as under:
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.
The aforesaid observations have been approvingly referred to by the Supreme Court in the case of Mohindar Singh v. Chief Election Commissioner reported in AIR 1978 SC 851. Therein, it is observed that where the statutory functionary makes an order based on certain grounds, its, validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. In view of the aforesaid legal position, we are left with no other alternative but to hold that the necessary pre-condition (that is the formation of requisite satisfaction of the detaining authority) is not complied with and, therefore the order of detention cannot be sustained and requires to be quashed and set aside.
7. Had it been the case of the respondents that the detaining authority himself had got prepared the grounds of detention, which are of the same date and which have been signed also on the same date and the same were framed before the order of detention was issued, we might have looked into the case from that angle. Moreover, had this point been advanced on behalf of the detaining authority successfully, we might not have invalidated the order of detention on this ground. But that is not the case of the respondents. In a given case it may even be possible for and on behalf of the detaining authority to contend that the requisite material for passing the detention order was already there and the same was considered by him. But having considered the material and having formed an opinion subjectively due to emergent circumstances he thought it fit to issue order of detention immediately without reducing the grounds of detention on paper. He may make out a case that situation demanded urgent action and slightest delay would have frustrated the very object of the order of detention. However, in such cases also it would be desirable for the detaining authority to place on record the factum of having considered the material and having formed an opinion on that basis. Not to do so may expose the order of detention being challenged on the ground of non application of mind. Such a challenge can be met with if proper case is made out to show that entire material was as a matter of fact considered by him and there were sufficient reasons for not putting this fact on file. However, on this basis the case is not argued at all on behalf of the respondent authorities. Therefore, except indicating that the Court is aware on the legal position that what is material and important is consideration of the relevant material by the detaining authority and the detaining authority should have applied his mind to the same before passing the order. Noting on file is more proof of the fact that the material is considered by the detaining authority. Noting on file is not the legal requirement of the law. Requirement of the law is that the material should have been considered and the detaining authority should have satisfied himself. Therefore, even in absence of such noting on file by other evidence and circumstances it can be shown that the material was considered by the detaining authority and that the detaining authority had satisfied himself before passing the order of detention. In absence of noting on the file it may be difficult for the detaining authority to convince the Court but that does not mean that even in absence of any such noting on the file the detaining authority cannot resort to any other mode of proof.
8. In the instant case, on facts we are of the opinion that there is no satisfactory evidence on record to show that the detaining authority applied his mind to the material on record and arrived at necessary satisfaction before passing the order of detention. Therefore, the detention order must be quashed and set aside.
9. In the result, the petition is allowed.
10. The order of detention dated July 12, 1987 produced at Annexure 'A' to the petition is quashed and set aside. The petitioner/detenu Ahmed Husan alias Kalio Shaikh Husen Shaikh is ordered to be released forthwith if not required in any other case. Rule made absolute.