JUDGMENT
R.M. Doshit, J.
1. Heard the learned advocates for the respective parties.
2. The petitioner challenges the order of preventive detention dated 18th February, 1998 made by the District Magistrate, Bhuj under the powers conferred upon him under Sub-section 1 of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 [hereinafter referred to as, `the Act’].
3. The Grounds of Detention refers to five offences under Chapters XVI & XVII of IPC, registered against the petitioner during the years 1995, 1996 and 1997. All the said cases are pending trial before the concerned Courts. The F.I.Rs filed in the said criminal cases reveal that the petitioner and his accomplices are running the business of TV Cable in the City of Bhuj. That, they harass their competitors and the servants of such competitors. In addition to the above referred criminal cases registered against the petitioner and others, further information is received by the Detaining Authority from the witnesses whose identity has not been disclosed. The witnesses have revealed that the petitioner indulges himself in extortion of money also. One of the witnesses stated that he is running an eatery and on the petitioner’s entering his eatery, all other customers, on account of fear, immediately left the eatery. It also appears that the petitioner is particularly prejudicial against the Muslim community and has been using offending language for the said community.
24.06.1999
4. The order of detention is challenged on the grounds that the activities of the petitioner may at the most be prejudicial to maintenance of law and order. However, the same cannot cause breach of public tranquillity, resulting into breach of public order. It is also contended that the statements made by the witnesses have not been verified by the detaining authority and the privilege claimed under Sec. 9(2) of the Act in respect of the identity of the said witnesses is not genuine, in absence of the particulars of the witnesses, the petitioner is deprived of his right to make effective representation against the order of detention. Further, though last of the offences was registered against the petitioner as early as in the month of December, 1997, the order of detention was not made for more than two months thereafter, such delay in itself should vitiate the order of detention. Besides, even thereafter, the order of detention was not executed for nearly six months. It should, therefore, be presumed that the petitioner’s activities are not detrimental to maintenance of public order. The order of preventive detention is, therefore, bad and illegal. In support of her contention, learned advocate Mrs. Patel has relied upon judgment of the Hon’ble Supreme Court in the matter of Mustakmiya Jabbarmiya Shaikh v. M.M Mehta, Commissioner of Police and Ors. [1995 (2) GLH 1269] and in the matter of Manju Ramesh Nahar v. Union of India and Ors. [1999 (2) SC 559] and of this court, in the matter of Bai Amina, W/o. Ibrahim Abdul Rahim Alla v. State of Gujarat and Ors. [1981 GLR 1186].
5. The petition has been contested by the learned AGP Ms. Hansaben Punani. She has relied upon the affidavits made by the concerned police inspectors and also by the District Magistrate, the Detaining Authority. She has relied upon the judgment of this Court in the matter of Bhikhabhai Thakorbhai Patel v. State of Gujarat and Ors. [1992 (2) GLH 440].
6. The concerned police inspectors one Shri R.B Bhabhor and Shri D.L Solanki have made affidavits and have contended that at the relevant time, they were posted at Bhuj City Police Station and they were entrusted the duty of serving the order of detention upon the petitioner. The petitioner, however, was not available either at his residence or at the places which he was known to be frequently visiting. He was not seen in the Bhuj city at all. It was only when an offence punishable under Sec. 307 IPC was registered against the petitioner on 4th June, 1998, the petitioner was could be arrested from Nakhatrana on 31st July, 1998. Under the orders of the Chief Judicial Magistrate, Bhuj, he was remanded to the police custody. After taking permission from the learned Magistrate, the order of detention was served upon him on 4th August, 1998. The District Magistrate has supported the order of detention and has contended that having regard to the nature of offences committed by the petitioner, repeatedly, the petitioner is necessarily a `dangerous person’ as defined in Sec. 2(c) of the Act. That upon perusal of the police papers and the criminal tendency, he was satisfied that the identity of the witnesses was required to be withheld under the powers conferred under Sec. 9(2) of the Act.
7. In the matter of Mustakmiya Jabbarmiya Shaikh (Supra), the Hon’ble Supreme Court has held that, `… for holding a person to be a dangerous person within the meaning of Sec. 2(c) of the Act, there should be positive material to indicate that such person is habitually committing or attempting to commit or abetting the commission of offence which are punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or under Chapter V of the Arms Act.’ The Court further held that, `it becomes necessary to determine whether besides the person being a dangerous person, his alleged activities fall within the ambit of expression `public order’. The alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or people of the locality which determines whether the disturbance caused by such activities amounting only to the breach of law and order or it amounts to breach of public order. If the activities fall within the category of disturbance of public order then it becomes essential to treat such a criminal and deal with him differently then an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing even tempo of life of the community of the specified locality.’
8. In the matter of Manju Ramesh Nahar (Supra), the Hon’ble Supreme Court has discussed the effect of late execution of the order of detention. The Court held that, `…this implies that as soon as the Government or its officer feels satisfied that an order under this Section is necessary, it has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earliest… If, however, authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the `satisfaction’ of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.’
9. In the matter of Bai Amina (Supra), the Division Bench of this Court dealt with the significance and the importance of the claim of privilege under the powers conferred under Sec. 9(2) of the Act in extenso. The Court held that, `the private promise of confidentiality must yield to the general public interest that is served by communication of such particulars and materials to the detenu in order to enable him to make effective representation. Confidentiality is not a head of privilege; it is the consideration to bear in mind only if a more important public interest is served by protecting the particulars and material from disclosure to the detenu only by reasons of the nature and character or class of such particulars and materials or on account of a clear, certain and imminent danger of the sources of such particulars and material drying up due to fear of reprisal, thus rendering the very exercise of detention nugatory.’ The Court has further held that, `it would be worthwhile to point out that the detaining authority must satisfy itself that it is against the public interest to make such disclosure …. the mind of the detaining authority, it should, therefore, be applied to the question whether or not supply of the relevant particulars or material would be injurious to public interest. If it mechanically endorses or accepts the recommendation of outside or inferior authority in that behalf, the exercise of power would be vitiated as arbitrary.’
10. In the matter of Bhikhabhai Thakorbhai Patel (Supra), the Division Bench of this Court, in respect of the privilege claimed under Sec. 9(2) of the Act, has held that, `what is necessary is the subjective satisfaction of the Detaining Authority and for arriving at the subjective satisfaction, the detaining authority himself has to apply his mind on the material placed before him. If at all he has doubt about the veracity of statements recorded, either he himself can verify the same or he can ask any other subordinate officer to verify the same. The detaining authority can also verify the statements from the officer who has recorded the same. There is no statutory provision for verifying such statements by the Detaining authority through the person other than those who have recorded the same.’
11. On perusal of the grounds of detention and the supporting material, I find that the petitioner had been arrested in respect of the last of the offences registered against him in the month of December, 1997 and was released on bail on 14th December, 1997. The concerned witnesses had made statements before the police inspector on 30th January, 1998, 31st January, 1998, 1st February, 1998 and 5th February, 1998. The genuineness of the statements made by the witnesses was verified by the Divisional Police Officer on 6th February, 1998 and 7th February, 1998. The order of detention thereafter was made on 18th February, 1998. The above referred police inspectors have satisfactorily explained why the order of detention could not be served upon the petitioner till 4th August, 1998. Further, the order of detention could not be served upon the petitioner because he has successfully avoided its service for a long time i.e., till he was arrested from Nakhatrana on 31st July, 1998. The delayed execution of the order of detention, therefore, shall not vitiate the order of detention. As discussed hereinabove, the detaining authority is required to satisfy himself regarding necessity to with-hold the identity and other particulars of the source of information gathered against the detenu. As held in the matter of Bai Amina (Supra), the detaining authority was not mechanical to accept recommendation of an outsider or inferior authority. However, nothing in the said judgment lays down a law that the detaining authority personally shall record verification of the genuineness of the statements made in respect of the anti-social activities of the detenu. Besides, as held in the matter of Bhikhabhai Thakorbhai Patel (Supra) it is imperative for the detaining authority to record its satisfaction. However, he need not personally verify the genuineness of the statements. Considering the above two judgments it can safely be held that what is required of the Detaining Authority is to satisfy himself about the genuineness of the statements made by the witnesses and the apprehension voiced by such witnesses. If upon subjective satisfaction, based on the material on record, the Detaining authority is satisfied that the identity and the particulars of source of information is required to be withheld, the privilege claimed under Sec. 9(2) of the Act would be justified. On the facts of the present case, I find that the statements have been made by the witnesses before the Police Inspector, while the genuineness of the same has been verified by a superior officer i.e., the Divisional Police Officer. The detaining authority having perused the record, has recorded his subjective satisfaction in respect of the need for claiming privilege under sec. 9(2) of the Act. It is categorically submitted that on account of rein of terror cast by the petitioner, the witnesses were apprehensive of retaliation and were not agreeable to lodge a formal complaint against the petitioner. In that view of the matter, it is required to be held that the detaining authority has rightly claimed privilege in respect of the identity of the witnesses under Sec. 9(2) of the Act. This brings me to the last contention whether the activities of the petitioner can be said to be detrimental to the maintenance of public order or not. Considering the nature of offences registered against the petitioner and the manner in which they are committed, the question hardly requires further deliberation. The petitioner’s activities are undoubtedly prejudicial to the maintenance of public order. The petitioner is, therefore, rightly held to be a `dangerous person’ within the meaning of Sec. 2(c) of the Act and his activities are rightly held to be prejudicial to the maintenance of public order.
12. In view of the above discussion, the petition is dismissed. Rule is discharged.