SCA/3874/1999 of RAMESH BABAJI THAKOR Vs COMMISSIONER OF POLICE on 28 December 1999

1. The petitioner came to be detained by virtue of an order passed on 30th April 1999 by Commissioner of Police, Ahmedabad city, Ahmedabad in exercise of powers under sub-section [1] of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985

[hereinafter referred to as `the PASA Act', for short]. The detaining authority in the grounds of detention took into consideration that the petitioner is involved in three prohibition cases which are registered against him. The authority took into consideration the statements of two anonymous witnesses and came to a conclusion that the petitioner is a bootlegger, his activities are detrimental to public order and is, therefore, immediately required to be prevented from pursuing his activities and therefore, is required to be detained under PASA.

2. The petitioner has approached this Court with this petition under Article 226 of the Constitution of India challenging the order of detention on the ground that there is improper exercise of powers u/s 9[2] of the PASA Act.

3. Mr. Dave , learned advocate appearing for the petitioner has relied only on the ground that there is improper exercise of powers u/s 9[2] of the PASA Act. In order to substantiate his argument, he stated that the statements of the anonymous witnesses were recorded on 28/3/1999 and the same were verified by the detaining authority on 30th March 1999 and the order came to be passed on that very day. Therefore, there was no time for the detaining authority to take into consideration the relevant important factors while exercising powers u/s 9[2] of the PASA Act. He has pressed into service decision of this Court in the case of Kalidas Chandulal Kahar v/s State of Gujarat as reported in 1993[2] GLR 1659 and submitted that the petition may be allowed.

4. Mr.Bukhari, learned AGP has opposed this petition. The affidavit in reply does not state any details as to what material was considered by the detaining authority while exercising powers u/s 9[2] of the PASA Act. The authority has in clear terms stated that, on material placed before him and on personally verifying the genuineness and correctness and veracity of the incidents of the unregistered offences and on being subjectively satisfied that the names and addresses of the witnesses, if disclosed to the detenue, the lives and properties of the witnesses would be in danger and therefore, privilege u/s 9[2] of the PASA Act was claimed.

5. In view of the rival side contentions, the factual part remains undisputed that the statements of witnesses were recorded on 28th March 1999. The same were verified on 30th March, 1999 and the order of detention came to be passed on that very day i.e. on 30th March, 1999. The detaining authority has based the subjective satisfaction for exercise of powers u/s 9[2] of the PASA Act and the statements of the witnesses verified by it. It may be noted that the detaining authority must have some material to arrive at a subjective satisfaction about the genuineness of the fear expressed by the witnesses which would require a thoughtful consideration. A balance is required to be struck by the authority while exercising powers u/s 9[2] of the PASA Act between the right of the detenue of making an effective representation and the public interest and for considering either of the two, there has to be some material before the detaining authority which can be considered by the detaining authority. In the instant case, there appears nothing to indicate factors that were available and considered by the authority. The Court is therefore at loss to appreciate how the detaining authority could have recorded a subjective satisfaction that the genuineness of the fear expressed by the witnesses qua the petitioner, so also the correctness of the statements qua the incidents narrated therein. That being so, the exercise of powers u/s 9[2] of the PASA Act stands vitiated and has resulted into depriving the petitioner of making an effective representation guaranteed under the Constitution of India. The order of detention therefore would stand vitiated. The ratio in the case of Kalidas C. Kahar [supra] will squarely apply to the present case.

6. The petition is therefore allowed. The impugned order of detention passed by the Commissioner of Police, Ahmedabad city, Ahmedabad on 30th March, 1999 in respect of the petitioner - detenue - Ramesh Babaji Thakor, is hereby set aside. The petitioner 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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