RAMANBHAI SHIVABHAI PATEL Vs. THE COMMISSIONER OF POLICE, BARODA
LAWS(GJH)-1988-12-30
HIGH COURT OF GUJARAT
Decided on December 26,1988

Ramanbhai Shivabhai Patel Appellant
VERSUS
The Commissioner Of Police, Baroda Respondents




JUDGEMENT

- (1.)Remaining Questions referred to Larger Bench
(2.)Majmudar, J.The petitioner who is the detenu under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 ('PASAA' for short) has brought in challenge the order of his detention passed by the Commissioner of Police, Baroda City (respondent No. 1 herein) on 22-4-1988. 2. The petitioner was sought to be detained with a view preventing him from acting in any manner prejudicial to the maintenance of public order in the Vadodara city. The petitioner was supplied with grounds of detention of even date when he was taken in detention. The order of detention has been brought in challenge on diverse grounds. Mr. Kapadia for the petitioner raised the following contentions in support of this petition:-
(1) Respondent No. 1 has passed the order of detention in exercise of the powers conferred on him by notification dated 28-5-1985. The said notification was issued under the Ordinance and under the PASAA. That Ordinance was replaced by the PASAA (Act XVI of 1985). It is, therefore, submitted that the detaining authority has exercised the powers under the notification which was no more in force on 22-4-1988.

(2) The detaining authority has considered the application dated 22-3-1988 given by the detenu for police protection against his landlord. This application showed that the petitioner was a weak person. That has been considered by the detaining authority while ordering detention. This circumstance being favourable to the detenu and having tendency to tilt the balance in his favour was relevant and vital circumstance which should have been considered by the detaining authority and as that has been done, the detention order is void.

(3) In the grounds of detention, various criminal cases are shown to be pending against the petitioner under the Bombay Prohibition Act alleging his involvement therein. In fact, many of them have ended in acquittal or discharge of the detenu even prior to the order of his detention. Hence, this vital circumstance was required to be kept in view by the detaining authority before passing the impugned order of detention and as this has been done, the order of detention has got vitiated.

(4) There was no material before the detaining authority to show that the petitioner was involved in activities pertaining to foreign liquor which is alleged to have been imported from Maharashtra, Rajasthan or Madhya Pradesh and that for coming to the aforesaid subjective satisfaction, the detaining authority seems to have relied upon the panchnamas copies of which were furnished to the detenu. Hence, the detenu was denied a right of effective representation under Article 22(5) of the Constitution of India against these material.

(5) The detaining authority relied upon the charge-sheets given against the detenu in some of the criminal cases in which he was involved. The detenu was given any copies of the panchnama or other supporting material which would have supported these charge sheets and hence also, the subjective satisfaction is rendered insufficient and a truncated one and hence, the order of detention has become void.

(6) The privilege claimed by the detaining authority for nondisclosure of names and addresses of the witnesses was bonafide one and in any case, there is no legal basis for supporting such privilege on the ground that the witnesses were afraid of getting their names and addresses supplied to the detenu due to the fear of retribution to their person or property. The ground is a valid ground for supporting claim of privilege as put forward by the detaining authority.

(7) The detaining authority has considered the lesser arastic remedy of externing the detenu under section 56 of the Bombay Police Act for his alleged nefarious activities reflected in the grounds of detention and hence, subjective satisfaction about the need to detain has remained comprehensive one and on this ground also, the order of detention is liable to be quashed.

(3.).....
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