M.M.DUTT - (1.) IN this writ petition, the petitioner has challenged the legality of the order of his detention dated 3/08/1988 passed by the Commissioner of Police, Ahmedabad City, under sub-section (2) of S. 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985, hereinafter referred to as 'the Act'.
(2.) THE grounds on which the impugned order of detention has been made run into seven pages. THE relevant portions of which are extracted below :- "In pursuance to Section 9(l) of the Gujarat Prevention of Anti-Social Activities Act, 1985, Shri Piyush Kantilal Shah is hereby informed the grounds of detention as under :- You are indulging into anti-social activities by hoarding illegal foreign liquor and also selling it through yourself and through your servants near Navrangpura Municipal Busstand and Navrang High School, Ahmedabad That the cases have been registered against you under Bombay Prohibition Act, 1949 and in which you have been arrested. JUDGEMENT_322_SUPP1_1989Html1.htm Carefully considering the complaint, identification marks on your face and charge-sheet, it appears that you are a prohibition bootlegger and you are indulging into sale of foreign liquor in the aforesaid areas and you continue your anti-social activities. In the aforesaid area, you, your servants and associates indulge into use of force and violence and also beat innocent citizens by which an atmosphere of fear is created and by indulging into such activities, you are causing hindrance to maintenance of public order. You also show dangerous weapons to the citizens and also create an atmosphere of fear and you are carrying on illegal liquor business. Because of your fear, citizens residing nearby are not in a position to speak anything against you and also do not file complaint against you. Because of your activities and your associates, the people of the aforesaid area feel insecurity of their life and property and all these activities are causing hindrance to public order. To substantiate that you are indulging into anti-social activities and that your activities are against the public order, certain persons residing in the aforesaid area who are peace loving have also given statements and the copy of the aforesaid statements are given to you. ... Taking into consideration all that has been stated aforesaid, I am fully satisfied that you are prohibition bootlegger and by indulging into use of force and violence, you continue to indulge into illegal sale of liquor and you create an atmosphere of fear and terror by beating innocent citizens. That action against you has been taken under ordinary law and you have been released on bail. After being released on bail, you have continued your illegal anti-social activities and therefore if once again actions are taken under ordinary law against you, there are possibilities of your being released on bail and your continuing anti-social activities and since it is necessary to prevent you immediately for maintenance of public order, and since there is no other alternative, as a last resort, I order to detain you under the aforesaid Act." It appears from the grounds extracted above and it is also not disputed that the petitioner has been prosecuted in two criminal cases. In FIR relating to case No. 62/88, the offence alleged to have been committed by the petitioner is that he was caught red-handed possessing English wines with foreign marks without any legal pass or permission to do so on 13/04/1988. In the second case being No. 114/88, the offence, as alleged to have been committed by the petitioner and as recorded in the FIR, is that he was caught while shifting 296 bottles of foreign liquors in an Ambassador car without any pass, permit or licence. It is not disputed that in one of these two cases the petitioner has been acquitted and the other is pending, but the petitioner has not been convicted by any Court. In the grounds of detention, it is alleged that the petitioner is a prohibition bootlegger, and that by indulging in use of force and violence and by illegal sale of liquor, the petitioner creates an atmosphere of fear and terror by beating innocent citizens. It is also alleged that the petitioner is indulging in antisocial activities, and that the activities are against public order.
(3.) THE statements of five persons, who have been described as witnesses Nos.1 to 5, have been recorded before the order of detention was passed. THE copies of their statements have been given to the petitioner, but their names have not been disclosed to the petitioner, and it is not disputed before us that in view of S. 9(2) of the Act, the detaining authority is entitled not to disclose the names to the detenu. At this stage, it may be stated that the representation of the petitioner is pending before the Advisory Board. The question that has been raised on behalf of the respondents is whether in view of the pendency of the representation before the Advisory Board, the writ petition is maintainable under Art. 32 of the Constitution. The question need not detain us long, for it has already been decided by this Court in Prabhu Dayal Deorah v. District Magistrate, Kamrup, (1974) 1 SCC 103: (AIR 1974 SC 183). In paragraph 16 (of SCC): (para 62 of AIR) Mathew, J., speaking for himself and Mukherjea, J.. observed inter alia as follows :- "We think that the fact that the Advisory Board would have to consider the representations of the petitioners where they have also raised the contention that the grounds are vague would not in any way prevent this Court from exercising its jurisdiction under Article 32 of the Constitution. The detenu has a right under Article 22(5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of the detention order. And, if their constitutional right is violated, they have every right to come to this Court under Article 32, complaining that their detention is bad as violating their fundamental right. As to what. the Advisory Board might do in the exercise of its jurisdiction is not the concern of this Court." ;