IQBAL HUSAIN AHMEDMIYA SHAIKH Vs. COMMISSIONER OF POLICE SURAT
LAWS(GJH)-1988-12-2
HIGH COURT OF GUJARAT
Decided on December 26,1988

IQBAL HUSAIN AHMEDMIYA SHAIKH Appellant
VERSUS
Commissioner Of Police, Surat And Another Respondents


Referred Judgements :-

PUSHKAR MUKHERJEE V. STATE OF WEST BENGAL [REFERRED]
PIYUSH KANTILAL MEHTA V. THE COMMISSIONER OF POLICE AHMEDABAD CITY AND ANR. [REFERRED]


JUDGEMENT

S.B.MAJMUDAR - (1.)The petitioner who is detained under the provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 (PASAA for short) pursuant to the order dated 16-4-1988 passed by the Commissioner of Police Surat city has brought in challenge the order in this petition on diverse grounds. ... ... ... ... ... ...
(2.)At the time of final hearing of the petition Mr. M. C. Kapadia learned Advocate for the petitioner raised the following contentions in support of the petition:
(1) There was no material before the detaining authority that the petitioners alleged activities bad disturbed public order at any time and consequently his subjective satisfaction that there was urgent need to datain the petitioner with a view to preventing him from disturbing public order in future is based on no material whatsoever and hence the condition precedent to the exercise of power is lacking in the present case and consequently the order of detention is liable to be quashed.

(2) The aspect of less drastic remedy viz. externment of the petitioner from the area of his alleged obnoxious activities under the provisions of the Bombay Police Act is not properly considered. In support of this contention it was also submitted that in past the externment proceedings against the petitioner were already taken and they hat desired effect on him and consequently before deciding to preventively detain the petitioner the authority ought to have considered this vital aspect and should have seen to it whether it was feasible to again extern the petitioner rather than detaining him under PASAA.

(3) The first information reports filed against the detenu and as shown at 51. Nos. 1 to 13 of the chart supplied to the petitioner along with the grounds of detention showed that the detenu was absconding meaning thereby this material clearly showed that the detenu was not on spot when the concerned raids were affacted. It indicated that he was not involved in these cases. This aspect of the matter was not kept in view by the detaining authority while ordering his detention and hence the subjective satisfaction underlying the detention order has got vitiated.

(4) The statements in the grounds of detention to the effect that out of 13 cases under the Bombay Prohibition Act 10 were pending before the Criminal Courts is not correct and tEat chargesheet were not filed in these cases against the detenu in any Criminal Courts. Consequently the subjective satisfaction arrived at by the detaining authority on this score is not genuine and is based on imaginary grounds and hence also the order of detention is liable to be quashed.

(5) The detaining authority has not applied his mind to the vital aspect that the petitioner was not enlarged on bail by any Criminal Courts and that every time he was being enlarged on bail by the concerned police station officer himself and still it was wrongly assumed by the detaining authority that in the grounds of detention that the petitioner was released on bail on diverse occasions by the Criminal Courts and that there was no possibility of getting such bail cancelled by the Court. Consequently the consideration of noncancellation of bail is based on no genuine and real material and hence also the subjective satisfaction an underlying the detention order has got vitiated.

(6) In the grounds of detention it has been stated that the petitioner is a Muslim which four witnesses who have deposed against him are Hindus and there was possibility of the petitioner beating them if he comes to know about their statements and there was possibility of communal riots between the groups of Hindus and Muslims. That this conclusion of the detaining authority is based on no material. In any case the relevant material underlying this conclusion is not supplied to the petitioner with the result that his right under Art. 22(5) of the Constitution of making a representation against this ground has got vitiated.

(7) The most material and vital aspect of the matter viz. that the detenu was not a fierce person but a weak man and he was always absconding and that never ill past any actions under Secs. 107 and 110 of the Cri. Pro. Code were ever taken against him or was he rounded up at any time during the communal riots were not considered by the detaining authority. Atleast these aspects were never placed Therefore the detaining authority for consideration and hence his subjective satisfaction underlying the detention order on account of non-consideration of these vital aspects has got vitiated.

(3.)Contention No. 1: At para 4 of the petition it has been stated that the allegations made in the grounds of detention are not correct and the petitioner denies the same. The petitioner says and submits that the said allegations have no rational connection with the disturbance of the public order situation. This contention has been combated by the respondents in the affidavit-in-reply of the detaining authority. It has been pointed out at para 7 that he was fully aware at the time of passing the order of detention against the petitioner about the distinction between the public order and law and order. He had passed she order of detention against the petitioner after carefully considering the entire material which was placed before him and he was subjectively satisfied that the order of detention should be passed against the petitioner as his activities had resulted into breach of public peace ant order. With a view to finding out as to whether there was any material with the detaining authority for reaching the aforesaid subjective satisfaction we may now turn to the grounds of detention supplied to the detenu alongwith the order of detention. In these grounds it has been pointed out that the petitioner was a bootlegger and from 1982 to 1988 he was arrested in 13 offences under the Bombay Prohibition Act out of which 10 cases were pending in Court for trial and three were pending police investigation. Details thereof are supplied to the detenu. Then in para 2 it has been stated that an illegal den was being run in public and many persons used to collect at his den for taking liquor illegally in public. Many persons under the influence of liquor used to move here and there. Even children of young age used to come to the den for taking liquor and there were persons who after taking liquor at the den were cutting jokes at She girls and ladies passing by the said den. Because of his bootlegging activities atmosphere of terror was being created as he used to beat people who tried to interfere with his nefarious activities. So far as these allegations are concerned it is true that they are general in nature and can be considered to be vague. However thereafter follows extract of statements of four witnesses (1) Rakesh Arunlal Khatri (2) Gangaram Sadvi (3) Bhagaram Viraji Chaudhari and (4) Bahadurlal Chauhan. Statements of witnesses (1) and (2) clearly indicate that on 29-3-1988 at about 8 oclock when the witness was passing by the den of the petitioner a group of persons had gathered and they were taking liquor and were consuming liquor in public. Some of the customers had become tipsy and were moving helter-skelter. At that time one lady passed by that den. Seeing her one person who was drunk started whistling and when she came near he caught bold of her. The witness therefore intervened and got her released. The said lady thereafter being ashamed went away. At that time the witness asked the petitioner as to why he was allowing such things to happen and not saying anything. On being so told the petitioner became angry and told the witness as to why he was asking him anything. Thereupon it was told by the witness that that had happened because of his activities and he should give them up. There upon the petitioner got further excited and took out his Rampuri knife and ran to assault the witness. On seeing this incident people moving on road got afraid and ran away and the persons residing in the surrounding locality immediately closed down their doors and windows and at that very place atmosphere of terror was generated. The petitioner gave first blows to the witness and allowed him to go and threatened him that if he filed any complaint to the police he would be murdered.
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