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Ranubhai Bhikhabhai Bharwad (Vekaria) vs State Of Gujarat on 14 March, 2000 cites

Kanuji S. Zala vs State Of Gujarat & Ors on 4 May, 1999

A pointed reference has also been made that these registered cases could not form the basis for the purpose of taking the petitioner as dangerous person under Sec.2(c) of the Act. Regarding the statements made by the three witnesses about the unregistered cases pertaining to the incidents dated 10th July 1999, 13th June 1999 and 26th June 1999, it was submitted by the learned Counsel for the petitioner that all these statements have been recorded between the period from 17th August 1999 to 25th August 1999 with regard to the alleged incidents of June and July 1999 and all these statements were verified on 29th August 1999, i.e. a day before the issuance of the detention order and as per the order passed by the detaining authority, the provisions of Sec.9(2) of the Act have also been invoked. The contention is that there was no material which can be said to be germane to the breach of public order for the purpose of passing the detention order and to record the subjective satisfaction and it has also been submitted that such subjective satisfaction of the detaining authority has been recorded on the basis of extraneous material, extraneous factors and extraneous considerations and in a shorter span, the detaining authority had no time at its disposal to apply its mind before passing the order on 30th August 1999 and the verification of the statements of the witnesses about the unregistered cases cannot be said to be any verification in the eye of law and for the purpose of invoking the provisions of Sec.9(2) of the Act. Learned Counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of Kanuji S. Zala v. State of Gujarat and ors., reported in (1999) 4 SCC 514, rendered by a Bench of two Judges of the Supreme Court. The Supreme Court has observed that what is required to be considered in such cases is whether there was credible material before the detaining authority on the basis of which a reasonable inference could have been drawn as regards the adverse effect on the maintenance of public order as defined by the Act and that it is also well settled that whether the material was sufficient or not is not for the courts to decide by applying an objective test as it is a matter of subjective satisfaction of the detaining authority. In the facts of the case before the Supreme Court, the Supreme Court observed that in view of the specific mention made by the detaining authority in the grounds that the activity of the detenu was likely to cause harm to the public health and that by itself was sufficient to amount to affecting adversely the public order as defined by the Act. The case before the Supreme Court was a case of a bootlegger and his illegal activities of selling liquor, the consumption of which by the people in the locality had been found to be harmful to the health. The harm to the public health as such was considered to be a relevant ground for the purpose of prejudice to the public order. The case at hand before this Court is with regard to Sec.2(c) and I find that except for the purpose of principle that there must be credible material before the detaining authority to draw a reasonable inference with regard to the adverse effect on the maintenance of public order, there is nothing in this case which can be said to be of any help to the petitioner. So far as the principle that there must be credible material before the detaining authority to form the basis is well settled and we have to see as to whether in the facts of the present case, there was any credible material before the detaining authority to draw a reasonable inference to arrive at a genuine satisfaction that the petitioner had conducted himself in such a manner so as to render the public order in peril and so as to be a menace against the society affecting the tempo of the society as a whole and these are the aspects to be taken into consideration on the facts of the present case.
Supreme Court of India Cites 3 - Cited by 60 - Full Document

Amanulla Khan Kudeatalla Khan Pathan vs State Of Gujarat & Ors on 28 June, 1999

Whereas Sec.2(c) of the Act defines a dangerous person, a person who either by himself or as a member or leader of a gang, during the period of three successive years, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI and XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959, the Supreme Court in the aforesaid case of Amanulla Khan Kudeatalla Khan Pathan (supra) has observed as to what is the meaning of the expression, 'habitually' and it has been laid down that the expression 'habitually' would obviously mean repeatedly or persistently. It supplies the threat of continuity of the activities.
Supreme Court of India Cites 20 - Cited by 132 - Full Document

Kalidas Chandubhai Kahar vs State Of Gujarat And Ors. on 15 April, 1993

9. Learned Asstt. Govt. Pleader has submitted that in the instant case, the proposal was made by the sponsoring authority on 27th August 1999. However, he is not in a position to say as to on what date it was received by the detaining authority itself. However, one fact is established that the verification of the witnesses has been made by the detaining authority on 29th August 1999 and therefore, it must have reached the detaining authority at least on 29th August 1999 and on the next day, i.e. on 30th August 1999, the detention order has been passed. An identical situation had come up before a Division Bench of this Court in the case of Kalidas C. Kahar v. State of Gujarat and ors. reported in 1993(2) GLR 1659. In para 6 of this decision at page 1662, the contention has been dealt with that the detaining authority had wrongly exercised the power under Sec.9(2) of the PASA Act and by such wrong exercise of powers the detenu's right to make a representation under Art.22(5) of the Constitution of India had been infringed. It was also considered that by statements of the witnesses had been recorded on 15th October 1992 and the said statements had been verified by the Supdt. of Police 'C' Division, Baroda City on 16th October 1992. The proposal in the case was made on 16th October 1992 and the order of detention was passed on 17th October 1992. The Division Bench noticed that it was rather curious that the entire bunch of material was supplied by the sponsoring authority at the time of making the proposal and that has been promptly accepted by the detaining authority and passed the order on the next day itself. It has been further observed that at the time of exercising the privilege under Sec.9(2) of PASA, a balance is required to be struck between the public interest on the one hand and the right of the detenu to make a representation under Art.22(5) of the Constitution on the other. If the statements of the witnesses are to be relied on, they must be genuine statements of the real persons. The detenu would like to verify as to whether these persons are fictitious persons or not and/or whether their statements are bogus statements or not? Unless the detenu knows the names and addresses of the persons who have given the statements, he cannot verify the aforesaid facts and if the names and addresses along with the contents of the statements are supplied to the detenu, he can have full opportunity to verify the position and make an effective representation on that basis. As against this, there is a provision under Sec.9(2) carved out on the basis of Art.22(5) of the Constitution which provides that nothing in sub-sec.(1) shall require the authority making such order to disclose facts which it considers to be against the public interest to disclose. The Division Bench has held that it is the duty of the detaining authority to strike a balance as stated above, that in public interest the names and addresses of the witnesses could not be disclosed. This should not be treated as an idle formality as it affects the public interest on the one hand and the right of the detenu on the other. When that is so, the detaining authority is expected to do some exercise before actually exercising the privilege under Sec.9(2) of the PASA. The Division Bench found in the facts and circumstances of the case before it that the verified statements were also placed before the detaining authority and there was no sufficient time for the detaining authority to examine the possibility of exercising the power under Sec.9(2), as the proposal was made on 16th October 1992 and the order of detention was passed on the following day, i.e. 17th October 1992, nor is there any material to show as to how he examined the necessity of exercising the power under Sec.9(2). Under the circumstances, the Division Bench held that it was a wrong exercise of power under Sec.9(2) which has affected the detenu's right of making an effective representation under Art.22(5) of the Constitution of India and therefore, the continued detention of the detenu is bad and illegal and the impugned detention order was bad and illegal. The facts of the present case are in close proximity to the facts which were considered by the Division Bench in the aforesaid case inasmuch as it has already been pointed out that the statements of the three witnesses in the instant case which were recorded before the Police Inspector on 17th August 1999, 221st August 1999 and 25th August 1999 with regard to the incidents dated 10th July 1999, 13th June 1999 and 26th June 1999 were the material along with the proposal which is said to have been made on 27th August 1999 and it is clear from the record that it was on 29th August 1999 that the detaining authority has recorded its verification of all these three statements. There is nothing on record to show that the detaining authority had considered the proposal dated 27th August 1999 at any time prior to 29th August 1999 and on 29th August 1999, all that has been done is that the concerned witnesses have stated before the detaining authority that the statements as had been made on the respective dates were correct and immediately thereafter on the following day, i.e. on 30th August 1999 the detention order has been passed. Therefore, I find that identical fact situation as was obtaining in the case before the Division Bench is there and it is a case of wrong exercise of power under Sec.9(2) of the Act because the detaining authority had no sufficient time for the purpose of verification of the facts which were required for the purpose of satisfaction to invoke privilege under Sec.9(2). Merely because in the facts before the Division Bench the proposal itself was made on 16th October 1992 and the order was passed on 17th October 1992 and in this case the proposal was made on 27th August 1999, the verification of the statements were made by the detaining authority on 29th August 1999 would not make any difference. Such a difference of a day or two here and there is hardly sufficient to inspire confidence that the detaining authority had the sufficient time for the purpose of verification of the facts which are necessary to lead to invoking the privilege under Sec.9(2) of the Act. In this case also the manner in which the verification has been recorded of the statements made by these three witnesses for the purpose of Sec.9(2) shows that the same has been done only as an empty formality inasmuch as the same witnesses had been called before the detaining authority and the detaining authority had recorded that whatever the statements made by the witnesses were correct. Thus, the whole exercise appears to have been done as a mechanical exercise and it is not borne out that there is an active application of mind on this aspect of the matter by the detaining authority for the purpose of verification of the facts as had been disclosed by the witnesses so as to express the fear and to invoke the privilege under Sec.9(2) against the disclosure of the names and addresses of the witnesses and it thus appears on the basis of the ratio of the decision of the Division Bench that it is a case of wrong exercise of power under Sec.9(2) and it is established that in such cases, the wrong exercise of power under Sec.9(2) adversely affects the detenu's right of making an effective representation guaranteed under Art.22(5) of the Constitution of India. This Court quite appreciates in such cases the predicament or the dilemma of the detaining authority in as much as, when the action is taken promptly, it is argued that the action has been taken in a hot haste and if the same is taken after lapse of some time, it is said that the action is delayed and therefore, the same stands vitiated. In order to combat this argument, the Division Bench has rightly observed that a balance has to be struck in such cases between the public interest and the right of the detenu to make an effective representation. The detaining authority is, therefore, required to act in such a manner that this balance is maintained. Once the materials are placed before the detaining authority with the proposal by the sponsoring authority, it must have reasonably sufficient time for the purpose of verification of the facts and the consideration of the entire material with an active application of mind and the order has to be passed at the earliest opportunity, but in this process to strike the balance between the public interest and the right of the detenu either of the two should not be defeated in any manner and the whole process must indicate that the detaining authority had applied its mind with the requisite approach and it had also devoted sufficient time before arriving at the decision to claim the privilege under Sec.9(2) of the Act and also to come to the conclusion that the detenu was required to be detained immediately. In the facts of the present case, I find that this requirement of maintaining the balance has been defeated and the detention order has been passed on 30th August 1999, i.e. on the next day to the date on which the materials were considered by the detaining authority. In this regard, learned counsel for the petitioner had made a reference to several unreported decisions of this Court rendered in different cases on different dates, but I find that it is not necessary for me to deal with all those unreported decisions insofar as this point is concerned, the matter stands fully covered by the Division Bench decision to which the reference has been made hereinabove.
Gujarat High Court Cites 8 - Cited by 25 - Full Document
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