SCA/2867/1999 of MIYANA RAJUBEN ISAKBHAI Vs STATE OF GUJARAT on 28 December 1999

1. The District Magistrate, Surendranagar passed an order u/s 3[1] of the Gujarat Prevention of Anti Social Activities Act, 1985 [hereinafter referred to as `the PASA Act' for short] on 31st March 1999, detaining the petitioner under PASA. The detaining authority took into consideration eight offences registered against the detenue under Bombay Prohibition Act. The detaining authority also considered the statements of four anonymous witnesses and observed that there is need for exercise of powers u/s 9[2] of the PASA Act in respect of these witnesses. The grounds of detention indicate that the detaining authority was satisfied that the petitioner is a bootlegger as defined under the PASA Act. Her activities were detrimental to public order and was, therefore, required to be detained under the provisions of the PASA Act.

2. The detenue - petitioner has challenged the order of detention on various grounds. The main ground is that there is improper exercise of powers u/s 9[2] of the PASA

Act.

3. Ms. Bela Prajapati, appearing for Mr. B.M.Mangukia, learned advocate for the petitioner has restricted her arguments to the above ground only. She submitted that the authority has verified the statements of only two of the witnesses, whereas it has exercised powers u/s 9[2] of the PASA Act in respect of the four witnesses. The order of detention, therefore, would stand vitiated. In support of her argument, she has placed reliance on a decision of this Court rendered in L.P.A. No. 1191/99 in Special Civil Application No.221/99 in the case of Shanker Vishnubhai v/s Commissioner of Police and others, decided on 8th October 1999 [Coram : Acting C.J. Mr. C.K.Thakkar and Justice Mr. K.M.Mehta].

4. Mr. Bukhari, learned AGP has opposed this petition. He concedes to the factual aspects that the statements of two of the anonymous witnesses are not verified by the detaining authority. He has however submitted that the detaining authority has taken into consideration all relevant aspects and then, has exercised powers u/s 9[2] of the PASA Act.

5. Having regard to the rival side contentions, the question that requires to be considered by this Court is whether the authority could have exercised powers u/s 9[2] of the PASA Act of claiming privilege of not disclosing the identity of the witnesses on account of fear expressed by them qua the petitioner - detenue, can be said to have been properly exercised in absence of verification of statements of two of such anonymous witnesses.

6. When powers u/s 9[2] of the PASA Act are exercised, they have a direct bearing on the right of the detenue of making a representation. The powers u/s 9[2] are to be exercised in public interest. Therefore, the detaining authority, while exercising this powers, has to strike a balance between the public interest on one hand and the interest of the detenue on the other. For this purpose, the authority has to record a subjective satisfaction that the fear expressed by the witnesses qua the detenue in respect of their person and property is genuine and that if the identity of these witnesses is disclosed, their person and property would be in danger. Whether fear expressed by a witness is genuine or not, can be verified in number of ways. But the main requirement is that the statements of the witnesses are required to be verified by the detaining authority, then only the subjective fear shown by the witnesses can be assessed subjectively by the detaining authority and therefore, verification of their statements is necessary. In this case of Shanker Vishnubhai [supra], the Division Bench of this Court has observed as under :- "In our opinion, in the instant case, since the third statement was not verified, the subjective satisfaction was vitiated and the order deserves to be quashed and set aside."

7. In this view of the matter, the order of detention would stand vitiated as the subjective satisfaction for the exercise of powers u/s 9[2] of PASA ACT has also stood vitiated. Improper exercise of powers u/s 9[2] of PASA Act has resulted in infringementt of right of the detenue of making a representation. The petition therefore deserves to be allowed.

8. The petition is therefore allowed. The impugned order of detention dated 31st March 1999 passed by the District Magistrate, Surendranagar in respect of the detenue is quashed. The detenue - Miyana Rajuben Isakbhai, 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. ]

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