SCA/4834/1999 of RAMESHBHAI DEVABHAI PARMAR Vs STATE OF GUJARAT on 21 December 1999

1. The Commissioner of Police, Ahmedabad City, Ahmedabad passed an order of detention on 12-3-1999 in respect of the petitioner in exercise of powers under Section 3(1) of the Gujarat Prevention of Antisocial

2. The grounds of detention indicate that the detaining authority took into consideration the offences registered against the detenu under the Bombay Prohibition Act. The authority also took into consideration the statements of two anonymous witnesses and exercised powers under Section 9(2) of the PASA Act of not disclosing the identity of these witnesses. The authority after considering the less drastic alternative remedies available to it came to the conclusion that detention under PASA Act is the only option available is to immediately prevent the petitioner from pursuing his illegal and antisocial activities under the PASA Act.

3. Mr. Patel appearing for Ms. N.V. Panchal learned advocate for the petitioner submitted that the verification of the statements and the order are of the same date. There was no time lag which could have possibilised the Detaining Authority to arrive at a genuine subjective satisfaction after application of mind to the facts of the case, for need for exercise of powers under Section 9(2) of the PASA Act. In this connection, the decision in the case of Kalidas C. Kahar v. State of Gujarat 1993(2) GLR 1659 has been relied upon.

4. Mr. M.A. Bukhari, learned AGP has opposed this petition. He submitted that the quickness on the part of the Detaining Authority may not be taken as non application of mind. At attempt is made by the Detaining Authority by filing an affidavit in reply to explain how the order is passed. But barring a statement to the effect that after taking into consideration the material before it and scrutinising the same the order was passed. There is nothing to indicate as to when the proposal was made by the sponsoring authority, when it was received by the Detaining Authority, when the statements were verified, when other material was verified and when the grounds of detention were prepared is not coming forth in the affidavit in reply.

5. The Detaining Authority has exercised the powers under Section 9(2) of the PASA Act and thereby has claimed privilege of not disclosing the identity of the witnesses. These powers are exercised by recording a subjective satisfaction that the statements made by these witnesses and the fear expressed by them qua the petitioner is found to be correct.

5.1 While exercising the powers under Section 9(2) of the PASA Act, the Detaining Authority has also to keep in mind that exercise of powers under Section 9(2) of the PASA Act would deprive the detenu of his right of making an effective representation. He has therefore to consider as to what is to be given preference. Public interest and then exercise of powers under Section 9(2) of the PASA Act and the right of the detenu in exercise of powers under Section 9(2). Each case has to be judged on its own merits and the Detaining Authority has to strike a balance between the interest of the detenu on one hand and the public interest on the other.

5.2 For arriving at a subjective satisfaction the authority has to consider the truthfulness and genuineness of the fear expressed by the witnesses. The authority has also to take into consideration the material placed before it for exercising the powers both under Section 9(2) as well under Section 3(1) of the PASA Act. This entire exercise would require time. As it is seen in the instant case, the whole exercise was undertaken at one go in a single day, i.e. 25-3-1999.

6. In view of the decision in the case of Kalidas C.

Kahar v. State of Gujarat 1993(2) GLR 1659, there was no time lag between the verification of the statements and the orders passed which could have possibilised for the Detaining Authority to undertake this exercise.

7. The petition is therefore deserves to be allowed and same is hereby allowed. Order passed by the Commissioner of Police, Ahmedabad City, Ahmedabad, on 25-3-1999 detaining Rameshbhai Devabhai Parmar under PASA Act is hereby quashed and set aside. The petitioner-detenu Rameshbhai Devabhai Parmar be set at liberty forthwith if not required in any other case. Rule is made absolute. No costs.

�����(A.L. Dave, J)