Gujarat High Court
Suleman vs State on 21 March, 2011
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
Gujarat High Court Case Information System
Print
SCA/2483/2011 24/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2483 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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SULEMAN
@ CHITRO HAJI SUMAR NIGAMNA - Petitioner(s)
Versus
STATE
OF GUJARAT - THROUGH SECRETARY & 3 - Respondent(s)
=========================================================
Appearance
:
MR
BM MANGUKIYA for
Petitioner(s) : 1, MS BELA A
PRAJAPATI for Petitioner(s) : 1,
MRS VAIJANTI PATHAK, AGP for
Respondent(s) : 1,
None for Respondent(s) : 2, 4,
DELETED for
Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 21/03/2011
ORAL
JUDGMENT
This writ of habeas corpus has been preferred by the petitioner challenging the order of detention passed by the District Magistrate, Kachchh-Bhuj dated 31st January 2011, in exercise of powers conferred on him under sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, 'the PASA Act') and also for an order to set him free from detention.
The order of detention along with the grounds supplied to the detenu are suggestive of the fact that the petitioner has been detained labelling him as a "dangerous person" as provided under sub-section (2) of Section 3 of the PASA Act. The grounds of detention are also suggestive of the fact that the detaining authority has taken into consideration one solitary case registered with A-Division Police Station, Gandhidham vide CR-I No.78/2010 dated 7th May 2010 for the offences punishable under Sections 386 and 143 of the Indian Penal Code. The status of this F.I.R. has been shown as "pending investigation". Over and above this, the detaining authority has relied upon two statements of witnesses said to be the victims at the hands of the detenu. The subjective satisfaction as reflected from the grounds are to the effect that the detenu is habitually indulging in offences falling within Chapter XVII of the Indian Penal Code. His highhanded actions create a situation of disturbance of public order. On these grounds, the District Magistrate has ordered detention of the petitioner.
I may first take into consideration the F.I.R. which was registered against the detenu on 1st May 2010. It deserves to be noted that the order of detention is dated 31st January 2011 whereas the case which has been relied upon to arrive at the subjective satisfaction about the antisocial activities of the detenu is of the month of May 2010. Almost after a period of 9 months from the date of registration of the said F.I.R., the District Magistrate has thought fit to exercise its powers under sub-section(1) of Section 3 of the PASA Act. As per the F.I.R., it is alleged that on 1st May 2010 when the company truck bearing registration No.MH-04-AG-7628 was driven by the driver Shri Subhash Patel carrying the goods purchased loaded at Kandla Market, Gandhidham, at that time, the detenu herein, his son and other three-four persons came there and challenged the complainant saying that they will not allow the truck to leave unless and until Rs.1 lakh is paid. The complainant pleaded to the detenu that the truck loaded with goods is worth Rs.10 lakhs. They cannot empty. The detenu, however, did not relent. Thereupon, one of the accused spoke to the person at the head office of the company at Mumbai and they threatened the complainant and other and if the truck is removed they would even commit murder. The complainant thereupon could collect Rs.25,000=00 and paid to the detenu and promised to pay rest on later. Thereupon only the truck was allowed to pass. On this allegation, an offence is registered for extortion punishable under Section 386 of the Indian Penal Code.
Mr.B.M.Mangukiya, learned counsel appearing for the detenu submitted that the order of detention is malicious, unjust and illegal. Learned counsel submitted that there is no material available with the detaining authority to indicate that the detenu is a dangerous person as defined under Section 2(c) of the PASA Act nor there is any material or antecedents to show that he is a habitual offender and involved in antisocial activities prejudicial to the maintenance of public order. Learned counsel submitted that the incidence referred to in the detention order is stated to have been occurred on 1st May 2010 whereas the order of detention is passed on 31st January 2011 i.e. almost after a period of about nine months. Learned counsel has drawn my attention to the pleadings in the petition. It is his case that this order of detention is nothing but abuse of power at the hands of the District Magistrate at the instance of few persons who are detenu's business rivals. The detenu is engaged in the business of fishing. In the pleadings, serious allegations have been levelled against one Mr.Vipul Kishan Agrawal, also a dealer in the fish. Learned counsel submits that a fish named Dara is a very lucrative business in this area and only with a view to see that there is nobody else in the competition, the detenu has been sidelined and he has been detained under PASA without any material worth the name. Learned counsel has further submitted that as a matter of fact it is the case of the detenu right from day one that he has been falsely involved in the case of extortion at the instance of few persons who are his business rivals and the detenu had come before this Court by way of Criminal Misc. Application No.13305/2010 in Criminal Misc. Application No.5701/2010 praying for transfer of the investigation.
Learned counsel has drawn my attention to the order dated 29th October 2010 passed in Criminal Misc. Application No.13305/2010 wherein the learned Single Judge permitted the detenu to make representation before the concerned DGP, who shall take steps as may be found necessary, if so made, expeditiously and in accordance with law.
Learned counsel has drawn my attention to page 161 of the compilation and has brought to my notice that pursuant to the representation of the detenu, the investigation stood transferred to CID Crime. Counsel submits that all these facts were not placed before the District Magistrate and if placed, they have not been considered. Learned counsel also submitted, referring to the statements of the two witnesses, that they are subsequently created so as to get over the inordinate delay in passing the order of detention. Learned counsel also submitted that the statements alleged to have been given by the persons are vague and not trust-worthy. Learned counsel also stated that the statements do not speak of the time of the alleged incident at which the incident had taken place.
Learned counsel further submitted that due to long lapse of time between the alleged prejudicial activity and the detention order, the order loses its significance, because the said prejudicial conduct was not approximate in point of time and had no rational connection with the conclusion that the detention was necessary for maintenance of public order. Learned counsel submitted that such sweeping parrot like statements and allegations are not sufficient to characterise the detenu as a 'dangerous person' or a habitual offender so as to come within the meaning of Section 2(c) of the PASA Act.
Learned counsel placed reliance on several judgments of the Apex Court as also of this Court in support of his contentions and submitted that the petitioner cannot be detained under the provisions of the PASA Act since the alleged incident is a solitary incident occurred more than nine months back and no way it can be said to be disturbing the public order in any manner. Reference was made to the following decisions:-
Mustakmiya Jabbarmiya Shaikh v/s. M.M.Mehta, Commissioner of Police and others [1995(2) GLR 1268], Hafijuddin Fazluddin Kazi v/s. Commissioner of Police, Ahmedabad city and another [1992(2) GLR 1332], Abdul Razak Nannekhan Pathan v/s. Police Commissioner, Ahmedabad and another [1990(2) GLH 137].
Learned counsel submitted that the detaining authority has completely misunderstood the difference between 'public order' and 'law and order', and referred to the following decisions of the Apex Court as well as of this Court:
Abdul Razak Nannekhan Pathan Vs. Police Commissioner, Ahmedabad and another [(1989)4 SCC 43] Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and another [(1989)3 SCC 321] Ayub @ Pappukhan Nawabkhan Pathan Vs. S.N. Sinha and another [(1990)4 SCC 552] Ram Manohar Lohia Vs. The State of Bihar and another [AIR 1966 SC 740] Superintendent, Central Prison, Fatehgarh and another Vs. Dr. Ram Manohar Lohia [AIR 1960 SC 633] Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and another [1989 Supp (1) SCC 322] In Re, Sushanta Goswami and others Vs. West Bengal [(1969)1 SCC 273] K.K. Saravana Babu Vs. State of Tamil Nadu and another [(2008)9 SCC 89] and Omprakash Vs. Commissioner of Police, Ahmedabad and others [1990(2) GLR 730);
AND Shamjibhai Manjibhai Patel Vs. Commissioner of Police, City of Ahmedabad and another [1992(2) GLR 1360] Noormohmad Ismail Shaik Vs. Commissioner of Police, Vadodara and others [1988(1) GLR 356] Sindhi Lohana Ravchand Gopaldas Vs. District Magistrate, Junagadh and others [1989(2) GLR 1106] Chandrakant N. Patel Vs. State of Gujarat and others [1994(1) GLR 761] and Hafijuddin Fazluddin Kazi Vs. Commissioner of Police, Ahmedabad City and another [1992(2) GLR 1332] Learned AGP Mrs.Pathak on the other hand contended that there are sufficient grounds to issue the detention order. Learned AGP has submitted that the detention order was issued after careful consideration of the materials available before the detaining authority. Learned AGP has further submitted that in a given case solitary incident may be sufficient enough to exercise powers of detention, provided such instance, event or incident disturbs public order. Learned AGP submitted that over and above the incident occurred on 1st May 2010, two witnesses also stated that the detenu had indulged in various antisocial activities disturbing public tranquility and public order. Learned AGP submitted that if the F.I.R. is perused, what is alleged against the petitioner is extortion under Section 386 of the Indian Penal Code and the definition of 'dangerous person' includes offence under Chapter XVII of the Indian Penal Code. Learned AGP submitted that both the witnesses are reliable and trustworthy, and there are sufficient material before the detaining authority to issue the detention order.
Learned AGP referred to the judgment of the Apex Court in the case of Amanulla Khan Kudeatalla Khan Pathan v/s. State of Gujarat [AIR 1999 SC 2197] and also a judgment of a Division Bench of this Court in the case of Firozkhan Huseinmiya Rathod v/s. Commissioner of Police for the city of Ahmedabad [(1999)2 GLH 819].
I have heard learned counsel Mr.B.M.Mangukiya for the petitioner-detenu and the learned AGP Mrs.Pathak for the respondent-State at length.
I am concerned only with the question as to whether there are sufficient grounds and materials available to detain the detenu in prison without trial in exercise of powers conferred under Section 3(2) of the PASA Act, describing him as as a 'dangerous person' under Section 2(c) of the Act on the basis of the incident stated to have occurred on 1st May 2010 and the versions given by the two witnesses. I have to see whether the first incident narrated in the detention order would be sufficient for the detaining authority to stamp the detenu as a 'dangerous person'.
On plain reading of the allegations levelled in the F.I.R., by any stretch of imagination, it cannot be said that the incident in question was such which disturbed the public order, peace and tranquility.
I am of the view that merely because an offence is registered under the Indian Penal Code that by itself is not sufficient to come to the conclusion that the public order has been disturbed. It all depends on the nature of the offence, the manner in which it has been committed and other relevant aspects. In the present case, it goes without saying that the F.I.R. registered on 1st May 2010 is pending investigation. Assuming for a moment for the sake of arguments that the allegations are true, still it cannot be said that they disturbed the public order. Now coming to the two statements relied with no date, no time and no place, they are also equally vague and unreliable. It deserves to be noted that in the said statements, except use of abusive language and inflicting of two-three slaps on the face of the witness, nothing more has been alleged. There is nothing to even remotely suggest that, that particular incident disturbed the public peace or tranquility much less public order. Same is the case with the statement of witness no.2. The statements in my view are general, vague and doubtful and the facts narrated therein are not sufficient to hold the detenu as a 'dangerous person'. The statements of these witnesses do not inspire confidence and are not sufficient to stamp the detenu as a 'dangerous person'. I have reasons to believe that those statements were procured few days before the incident so as to explain the inordinate delay in issuing the order of detention.
At this stage, it would be expedient to quote the judgment rendered by the Division Bench of this Court in the matter of Ramesh Vandha Modhwadiya through brother, Laxmanbhai Vandha, reported in 2009(3) GLH 296, wherein in paragraph 11, the Division Bench has observed as under:-
"11.PASA Act has been enacted with a clear object to prevent the crime and to protect the society from anti-social elements and dangerous characters against perpetration of crime by placing them under detention for such a duration as would disable them from resorting to undesirable criminal activities. The provisions of the Act are intended to deal with habitual criminals, dangerous and desperate outlaws, who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them. Law is well settled that the power under the Act should be exercised with restraint and great caution. In order to pass an order of detention under the Act against any person, the detaining authority must be satisfied that he is a `dangerous person' within the meaning of Section 2(c) of the PASA Act, who habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Penal Code or any of the offences punishable under Chapter V of the Arms Act as according to sub-section (4) of Section 3 of the Act it is such `dangerous person' who for the purpose of Section 3 shall be deemed to be a person "acting in any manner prejudicial to the maintenance of public order"
against whom an order of detention may lawfully be made. Further, subsection (1) of Section 3 confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of `public order'. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates 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 of any person referred to in sub-section (4) directly or indirectly, are 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. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be `acting in any manner prejudicial to the maintenance of public order' when such person is a `dangerous person' and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a `dangerous person' his alleged activities fall within the ambit of the expression `public order'. A distinction has to be drawn between law and order and maintenance of public order."
In paragraphs 15 and 16, the Division Bench has, after considering the factual position on the record, observed as under:-
"15.We find that even going by the F.I.R. on the date of incident, it is alleged that the dentenu's father had a pistol with him. There is nothing to show that he had fired with the pistol or caused any harm to anybody. Possession of pistol by detenu's father without license may be an offence so far as father is concerned and not the son, the detenu. Further, it is also to be noted that though they had disturbed the programme, later, the programme continued without any disturbance. Further, they had not caused any harm or bodily injury to anybody present there. Even in the F.I.R. it is stated that they had not caused any serious harm or injury to anybody. At the most, in our view, the incident occurred on that day might have raised problems of law and order, but we find it impossible to see that they impinged public order. No motive was also attributed against the detenu for creating such an incident. In order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order to fall out and extend and reach of the alleged activities must be of such a nature the ordinary law cannot deal with it or prevent the subversive activities affecting the society. In our view, those incidents are not sufficient to take action against the detenu under the provisions of the PASA Act. We are, therefore, unable to agree that the incident in question occurred on 10.02.2008 would be sufficient to disturb the tempo of life of the community so as to disturb the public tranquility and public order.
16.The incident referred to in the F.I.R. had occurred on 10.02.2008 and criminal case was registered against the detenu and others and are being tried for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 25(1-B)A.B.) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to detain a person, and to characterise him as a `dangerous person' curtailing his life and liberty. There is nothing to show that the detenu is a habitual offender, apart from the solitary incident occurred on 10.02.2008. May be, a solitary act has the propensity of affecting the tempo of life and public tranquility, but the incident occurred on 10.02.2008 will not fall under that category. The detaining authority could not point out any other incident in which he was involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The solitary incident pointed out in the F.I.R. and the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere fact that the order narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous person', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual offender. Power under the Act to detain a person in jail has to be exercised with restraint and great caution."
Learned counsel Mr.Mangukiya has also relied upon a recent pronouncement of the Supreme Court in the matter of Pebam Ningol Mikoi Devi v/s. State of Manipur and others, reported in (2010)9 SCC 618, wherein the Supreme Court has considered all aspects pertaining to individual liberty and has also held that in a criminal case, if it is initiated against the detenu, the prosecution would not be in a position to procure evidence to sustain conviction cannot be a ground to pass an order of preventive detention under the National Security Act.
I am also of the view that the detention order itself is vitiated on the ground of delay. The incident had occurred on 1st May 2010. The F.I.R. was registered on the same day but the detention order was passed only after about nine months i.e. in January 2011. The delay in issuing the order of detention on the incidence of 1st May 2010 has not been satisfactorily explained by the detaining authority.
At this stage, I deem it fit and proper to take judicial notice of the fact that the State has tried to meet with the petition of the detenu by filing an affidavit-in-reply. The affidavit-in-reply is at page
167. This reply has been filed by one Shri Dushyant Umashankar Upadhyay, Mamlatdar, Disaster Management, Collector Office, Bhuj. I am not able to understand as to in what capacity a Mamlatdar of Disaster Management has filed this reply meeting with the petition preferred by the detenu. Nothing is brought on the record to show as to how he has been authorized by the District Magistrate to file this reply. In habeas corpus proceeding, the affidavit filed in Court should be precise and clear. The District Magistrate who has passed the order of detention should himself explain his subjective satisfaction and the grounds therefor. One can understand that if the person who passed the detention order is not available, an affidavit sworn by responsible officer of the department concerned may be treated as proper and sufficient, provided valid reasons for inability to swear affidavit by the detaining authority have been furnished, which are completely lacking in the present case. I have also noticed one another aspect in the reply. The reply travels much beyond than what is considered by the District Magistrate. It appears that some old cases have also been referred to in paragraph 7 of the reply, which are not at all stated in the grounds of detention. In any case, I am not satisfied with the reply much less in the manner in which it has been filed and that too by a Mamlatdar, Disaster Management, Collector Office, Bhuj.
It would be expedient to rely on a judgment of the Supreme Court in this regard rendered in the matter of Bhut Nath Mate v/s. The State of West Bengal, reported in AIR 1974 SC 806, wherein in paragraph 21, it is observed as under:
"True, we should have expected an affidavit from the detaining authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy. Why is an affidavit then needed at all? The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre-emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precise in the form of an affidavit. The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse. We are aware that in the exigencies of administration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit. The next best would then be the oath of one in the Secretariat who officially is cognisant of or has participated in the process of approved by Government - not one who, long later, reads old files and gives its gist to the court. Mechanical means are easy but not legitimate. We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty. In some cases, where a valid reason for the District Magistrate's inability to swear affidavits directly has been furnished, this court has accepted the concerned Deputy Secretary's affidavit. This should, however, be the exception, not the rule."
An identical view has been taken by the Supreme Court in the matter of Jagdish Prasad v/s. The State of Bihar and another, reported in AIR 1974 SC 911, wherein in paragraph 5, the Supreme Court has observed as under:
"Shri Anthony relied on the mental vacillation of the detaining officer as disclosed in the affidavit in return filed by the State where 'and services' is struck off after "maintenance of supplies". If this reflects the slippery satisfaction of the District Magistrate it is unfortunate. Here some Upper Division Assistant (Special), Home Department, has sworn an affidavit, not with personal knowledge but with paper wisdom. It is difficult to appreciate why in return to a rule nisi in a habeas corpus motion, it is not thought serious enough even where liberty of a citizen is chocked off, to get the District Magistrate to explain his subjective satisfaction and the grounds therefor. Not even why he is not available nor the next best, the oath of a senior officer in the Secretariat who had been associated with the handling of the case at Government level. Mechanical affidavits, Miniaturising the files into a few paragraphs, by some one handy in the Secretariat cannot be regarded as satisfactory. This not a mere punctilio of procedure but a probative requirement of substance."
As stated earlier, unreasonable delay creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the detenu in order to prevent him to carry out the prejudicial activities on the grounds of detention. Barring the two statements of witnesses, on which also no complaints have been filed, there is nothing to show that from the date of the incident i.e. 1st May 2010 till the date of the detention order, the detenu had committed any offence so as to be booked under the provisions of Section 2(1) of the PASA Act.
I have already indicated that the statements by the two witnesses are sweeping parrot like statements and are very vague and are of general nature, and in my view, they are not sufficient to characterise the detenu as a 'dangerous person' under the provisions of the PASA Act.
On the facts discussed above, in my view, there is no material which may lead to a reasonable and definite conclusion that the detenu is habitually engaged in criminal activities, and therefore, a 'dangerous person'. The detaining authority, in my view, has passed the impugned order of detention against the detenu without application of mind.
As a result of this, the impugned order of detention dated 31st January 2011 passed by the District Magistrate, Kachchh-Bhuj deserves to be quashed and the same is hereby quashed and set-aside.
The detenu Suleman @ Chitro Haji Sumar Nigamna is ordered to be set at liberty forthwith if he is not required in any other case. Petition is allowed. Rule made absolute accordingly.
The writ of this order be forwarded to the Jail Superintendent, District Jail, Bhavnagar.
Direct service is permitted.
(J.B.Pardiwala, J.) /moin Top