SCA/5950/1999 of RAMESH ALIAS TENI SARLANBHAI DESAI Vs STATE OF GUJARAT on 28 December 1999

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 5950 of 1999

For Approval and Signature:

Hon'ble MR.JUSTICE A.L.DAVE

============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAMESH ALIAS TENI SARDANBHAI DESAIVersus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR YN OZA for Petitioner MR BUKHARI, AGP, for Respondent No. 1, 2

-------------------------------------------------------------- CORAM : MR.JUSTICE A.L.DAVE

Date of decision: 28/12/1999

ORAL JUDGEMENT

#. The Commissioner of Police, Ahmedabad City, Ahmedabad, passed an order on April 7, 1999, in exercise of powers under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA Act" for short), detaining the petitioner under the provisions of the PASA Act.

#. The grounds of detention indicate that as many as four offences registered against the detenu. Statements of two anonymous witnesses were recorded. The detaining authority was satisfied that the activities of the detenu are detrimental to public order and, therefore, he is required to be detained under the PASA Act to immediately prevent him from pursuing his illegal and anti-social activities.

#. Mr. Y.N. Oza, learned advocate appearing for the petitioner has urged that there is improper exercise of powers under Section 9(2) of the PASA Act. She submitted that the statements of anonymous witnesses were recorded on 4th and 6th April, 1999, the same were verified on 7th April, 1999 and the order was passed on that day itself by the detaining authority. The detaining authority, therefore, had no time to arrive at the subjective satisfaction for exercise of powers under Section 9(2) of the PASA Act and, therefore, the right of the detenu of making an effective representation is infringed. This would render the order illegal and, therefore, the petition may be allowed by setting aside the order of detention.

#. Mr.Bukhari, learned Assistant Government Pleader, has opposed this petition.

#. The affidavit filed by the detaining authority generally deals with the question of subjective satisfaction for the need for exercise of powers under satisfaction for the need for exercise of powers under Section 9(2) of the PASA Act.

#. In view of the rival side contentions, it requires to be determined as to whether the subjective satisfaction recorded by the detaining authority for exercise of powers under Section 9(2) can be said to be genuine.

6.1 The statements were verified on 7th April, 1999 and the order of detention came to be passed on the very same day. There was, therefore, no time lag between these two events which could have made possible for the detaining authority to arrive at a genuine subjective satisfaction for exercise of powers under Section 9(2) of the PASA Act. The powers under Section 9(2) of the PASA Act are required to be exercised in public interest and for that purpose, the authority has to satisfy itself

that the incidents narrated by the anonymous witnesses are correct and the fear expressed by these witnesses qua the petitioner is genuine and that, therefore, it is necessary to exercise the powers under Section 9(2) of the PASA Act. This will have a bearing not only on the question of public interest, but also on the right of the detenu of making an effective representation which is guaranteed by the Constitution and any error or lapse found in exercise of such power would render the order of detention bad in law. The subjective satisfaction required to be recorded by the detaining is not by way of an empty formality and the authority has to take steps apart from interrogating the witnesses to satisfy itself that the incidents narrated by the witnesses and the fear expressed by the witnesses are correct and genuine. If the verification is on 7th April, 1999 and the order is passed on the very same day, there is no reasonable time lag between these two dates which would enable the detaining authority to undertake this exercise. In this regard decision in case of Kalidas Chandubhai Kahar v. State of Gujarat [1993(2) GLR, 1659] based on similar facts may be referred to.

#. The affidavit in reply also does not disclose as to what exercise undertaken by the detaining authority for arriving at a subjective satisfaction for exercise of powers under Section 9(2) of the PASA Act. It is true that the subjective satisfaction cannot be judged by a Court and whether the material before the detaining authority was sufficient or not cannot be gone into by the Court. But whether there was cogent material to arrive at the subjective satisfaction has to be examined and in absence of any such material, the subjective satisfaction cannot be said to have been genuinely arrived at. This would render the impugned order bad in law.

#. In view of the above discussion, the petition is allowed. The order of detention in respect of the petitioner-Ramesh alias Teni Sardanbhai Desai, dated 7th April, 1999, is hereby quashed and set aside. The petitioner-detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly with no orders as to costs. ����[ A.L. DAVE, J. ] gt