ROSHANBIBI Vs. POLICE COMMR SURAT
LAWS(GJH)-1988-12-7
HIGH COURT OF GUJARAT
Decided on December 30,1988

ROSHANBIBI Appellant
VERSUS
POLICE COMMR., SURAT Respondents


Referred Judgements :-

BAI AMINA'S CASE [REFERRED TO]
SHALINI SONI V. UNION OF INDIA [REFERRED TO]
ICCHU DEVI CHORARIA VS. UNION OF INDIA [REFERRED TO]
KAMLA KANYALAL KHUSHALANI VS. STATE OF MAHARASHTRA [REFERRED TO]
KIRIT KUMAR CHAMAN LAL KUNDALIYA KIRIT KUMAR CHAMAN LAL KUNDALIYA KIRIT KUMAR CHAMAN LAL KUNDALIYA VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

MAJMUDAR, J. - (1.)The petitioner who is detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (the PASAA for short) by an order dated 20-4-1988 passed by the Commissioner of Police, Surat City has brought in challenge the said order on diverse grounds. The petitioner was taken in custody on the same day and was furnished the grounds of detention of even date. At the time of final hearing of this petition, Mr. Kapadia for the petitioner raised the following contentions :-
(1) That the detaining authority has arrived at his subjective satisfaction without application of mind inasmuch as he has mentioned in the grounds of detention that he was satisfied that there was imminent need to prevent the petitioner as steps against her under any other law had no effect on her and she had continued her bootlegging activities. That the said statement in the grounds of detention shows complete non-application of mind inasmuch as the earlier paragraphs of the grounds of detention reveal that steps were taken against the petitioner in the past only under one law, viz. the Bombay Prohibition Act and not under any other law and still the detaining authority proceeded on the assumption as if steps were taken against the petitioner under different laws and the said step had no effect. Consequently, the subjective satisfaction underlying the order of detention has got vitiated and hence the order is liable to be set aside. (2) In the grounds of detention, it has been stated that the detaining authority has ascertained that what the witnesses had stated against the detenu before the sponsoring authority was true and he was satisfied about the same that there is nothing on record to show whether any such inquiry was at all made by the detaining authority and consequently, it must be held that no such inquiry was made by the detaining authority before arriving at the subjective satisfaction about the need to detain the detenu on the basis of the statements of these witnesses and on this ground also, the order of detention is liable to be set aside. (3) In the alternative, it was submitted that even assuming that the statements of the witnesses were verified by the Superintendent of Police, as is found during the hearing of this petition from the record of the relevant material with the respondent, even then the order of detention based on these statements is liable to fail as the original statements of these witnesses were bearing endorsement below them of being verified by the Superintendent of Police on April 19, while the copies of the statements supplied to the detenu along with the grounds of detention did not mention this verification and were supplied without the copies of the relevant endorsement below the concerned statements; that no privilege vas claimed by the respondent detaining authority in connection with these endorsements by the Superintendent of Police and still, the factum of these endorsements was withheld from the petitioner. It must, therefore, be held that the copies of the statements of witnesses were not supplied in full to the petitioner and that affected her right under Article 22(6) of making an effective representation against the statements and hence also, the continued detention of the petitioner has become void. (4) The detaining authority has mechanically exercised the power of detention by blindly accepting the proposal of the sponsoring authority and hence also, the order of detention is void. (5) The detaining authority has not considered certain vital and relevant facts concerning the detenu. These facts, if considered, would have tilted the balance one way or the other and would have affected the subjective satisfaction of the detaining authority about the need to detain the detenu. All these vital facts were either not placed by the sponsoring authority before the detaining authority or if placed, did not appear to have been considered by the detaining authority. In any case, the petitioner has not been informed about the same in the rounds of detention and consequently, the continued detention of the detenu has become bad. (6) The privilege exercised by the detaining authority under Section 9(2) of the PASAA read with Article 22(6) has got vitiated inasmuch as the detaining authority in the grounds of detention in this connection has observed that there was possibility of communal riots in case the Muslim supporters of the detenu went to beat Hindu waitresses who had deposed against the detenu; that these observations of the detaining authority in the grounds of detention are based on no material and are a pure conjecture which has affected his subjective satisfaction under Section 9(2) about the need to exercise privilege and as the exercise is a subjective exercise, the entire subjective satisfaction has got vitiated. (7) It was contended in further continuation of ground No. 6 but as a separate aspect that the conclusion reached by the detaining authority about likelihood of communal riots getting flared up is very vague and has kept the detenu guessing. Consequently her right under Art.22(5) of the Constitution of making a representation in this connection is infracted and, therefore, the continued detention has become void. (8) The detaining authority has exercised his privilege under Section 9(2) of the PASAA read with Art.22(5) of the Constitution on a misconception that apprehension regarding danger to person and property of the witnesses had connection with public interest and that for safeguarding such interest, privilege had to be exercised. Relying on decision in Bai Amina's case, (1981) 22 Guj LR 1186 , it was submitted that exercise of privilege on the aforesaid ground is illegal and invalid.)

(2.)(Contention No. 1) : So far as this contention is concerned, our attention was invited by Mr. Kapadia to the ground of detention at page 13. In para 1 of the grounds, it is stated that the petitioner was involved in 31 offences under the Bombay Prohibition Act. Out of these cases. 20 cases were pending trial and 11 cases were pending investigation. We were then taken to para 3 of the grounds which states that the petitioner was arrested for the offence under the Bombay Prohibition Act on 14-2-1986 and after being released on bail, she had again involved herself in other offences and by 11-2-1988. she was arrested in 31 prohibition cases under the Bombay Prohibition Act. We were then taken to para 4 of the grounds which stated that having carefully considered the aforesaid evidence and in the light of what is stated in para 1 of the grounds the detaining authority was satisfied that the petitioner was running liquor den keeping in her possession country liquor and that she had been involved in offences under the Bombay Prohibition Act and she was a known bootlegger. Then follow certain recitals which showed that it was not possible to take steps under Section 437 of the Cr. P.C. for getting her bail cancelled and there was no use resorting to steps under Section 93 of the Bombay Prohibition Act or under Sections 107 and 110 of the Code of Cr. Procedure nor any purpose would be served by resorting to steps under the Bombay Police. Act for externing the petitioner from the concerned area. Then follows sub-para of para 4 which states that her activities have spread to large extent and she was always involved in such activities. Thereafter occur the following sentences which when translated in English read as under :-
"Steps taken against you under any law have no effect on you and you have continued your activities. With a view to giving, phillip to your bootlegging activities, you are again and again disturbing public order. Because of your aforesaid activities, no safety is left for person and property of the members of the public. Hence, with a view to preventing disturbance of public order because of your bootlegging activities and in public interest, it is found necessary and proper to detain you under PASAA and I am satisfied in this connection." Relying on the aforesaid averments, in sub-para (1) of para 4 of the grounds it was submitted by Mr. Kapadia that the detaining authority while arriving at subjective satisfaction about need to preventively detain the detenu, considered two aspects of the matter viz. (i) steps taken against the petitioner under any law and (ii) steps which can be taken by way of less drastic remedy under any other laws. So far as latter aspect is concerned, the detaining authority came to the conclusion that no useful purpose will be served by taking steps in future under any other laws by way of less drastic remedy. But so far as former aspect is concerned, the detaining authority referred to steps which were actually taken in past against the detenu under any law and that law was only the Bombay Prohibition Act because the earlier paras of the grounds clearly indicated that the petitioner was already proceeded against on various occasions only under the Bombay Prohibition Act. No other steps were taken against her under any law save and except the Bombay Prohibition Act. It was, therefore, submitted that when actual steps were taken against the petitioner under only one law viz. Bombay Prohibition Act, the detaining authority made incorrect assumption and observed that steps taken under any law against the detenu had no effect, meaning thereby, he thought at that stage that actual steps might have been taken against her under more than one laws and so far as this assumption is concerned, it is factually not borne out and, therefore, the subjective satisfaction based on this imaginary ground has got vitiated and hence, the order must fail. In this connection, our attention was invited by Mr. Kapdia to Oxford English Dictionary. Vol. I. 1970 Edition (reprint) at page 378 wherein various meaning of the word 'any' have been given. He put emphasis on the meaning of 'any' in the said dictionary to the effect that it would mean 'other' and it is used in singular as well as plural sense. It was submitted that when the detaining authority used the words 'steps taken under any law had no effect', he meant to convey that steps might have been taken under more than one laws against the detenu and they had no effect on her; while in fact the steps were taken only under the Bombay Prohibition Act and, therefore, the aforesaid observations which are part and parcel of the process of subjective satisfaction are clearly based on imagination. He also placed strong reliance on the judgement of this very bench in spl. crl. appln. No. 494 of 1988 decided by us on 28-12-1988. It is true that in that decision, identical recitals used by the detaining, authority in that case were construed and in the light of the grounds of detention in that case and in the context and settings of various grounds, it was held that the detaining authority's observations that steps taken against the petitioner of that case under any law, tried to convey that steps were taken under various laws while they were taken only under the Bombay Prohibition Act and, therefore, the subjective satisfaction in that case was found to be based on consideration of an imaginary circumstance and, therefore, it failed. It must be stated that the aforesaid decision prima facie supports the view which is canvassed by Mr. Kapadia. But as we will show hereafter, on the facts of this case, the ratio of that decision will be of no avail to the petitioner.

(3.)Mr. Kapadia also invited our attention to the observations of the Supreme Court in the case of Icchu Devi v. Union of India. AIR 1980 SC 1983. In head-note (b) dealing with Art.22(5) of the Constitution read with Section 3(3) of COFEPOSA Act, it is stated -
"When Clause (5) of Article 22 and Sub-Section (3) of S.3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them."
Mr. Kapadia, therefore, submitted that the word any in the context would mean "number of" documents or in plural sense.
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