JUDGMENT
A.M. Ahmadi, J.
1. The detenu has been taken in detention under Sub-section (1) of Section 3 of the Gujarat Prevention of Anti Social Activities Ordinance, Act, 1985, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the City of Ahmedabad. The ground of detention disclose that investigations are pending against the detenu for the possession of liquor, etc; in six cases registered between 1982 and 1985. After setting out the six cases the grounds of detention proceed to state ‘Thus you are known as a person dealing in illicit liquor’. Thereafter the detaining authority states that because of this activity of the detenu, there is an atmosphere of danger and fear or insecurity amongst the residents of the locality. The order further recites that since the detenu indulges and continues to indulge in such activities, the maintenance of public order is or is likely to be adversely affected. Except the mechanical reproduction of the requirements of the law, no basic material is to be found in the grounds of detention in support of the conclusion or subjective satisfaction reacted to the above effect.
2. The enactment in question provides for preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders and property gravers to curb their anti-social and dangerous activities prejudicial to the maintenance of public order. The law is preventive and not punitive in nature. It is, therefore, not a punishment for past activities of an individual but is intended to prevent future activities which are detrimental to public order. By enacting this legislation the State purports to perform its duty to ensure public order, if need be by encroaching upon the liberty of certain characters branded as bootleggers, etc. The law is designed to afford protection to society by ensuring peace and tranquillity in the area in which such undesirable elements operate by dripping their wings before they disturb public order. Since the law permits detention in jail without trial, it must be sparingly wed and strictly construed.
3. Section 3(1) empowers the State Government to make an order of detention with respect to any person with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Under Section 3(2) it may authorise the District Magistrate or the Commissioner of Police to exercise the said power. The order passed by the authorised officer would have a life of only 12 days unless approved by the State Government under Section 3(3). Sub-section (4) and the Explanation thereto may be reproduced here:
3. (4) For the purposes of this section, a person shall be deemed to be ‘acting in any manner prejudicial to the maintenance of public order’ when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
Explanation: For the purposes of this Sub-section public order shall be deemed to have been affected adversely or shall be deemed to be affected adversely inter alia if any of the activities of any person referred to in this Sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or wide spread danger to life, property or public health.
4. Next we come to Section 9(1) which obliges the authority making the detention order to communicate, not later then seven days, the grounds of detention with a view to affording the detenu the earliest opportunity of making a representation to the State Government against the detention order. This provision merely satisfies the requirement of Article 22(5) of the Constitution.
5. The safeguards under Article 22(5) as well as Section 9(1) being essentially procedural, their efficacy must depend on the sense of responsibility evinced by those who have been trusted to exercise power of preventive detention. The communication of the grounds without loss of time is expected so that the detenu can make an effective representation against his detention. If this right to make an effective representation is to have any meaning, it follows that the grounds must disclose the basic facts which the detaining authority had evaluated for reaching the subjective satisfaction required for making the impugned detention order. It follows that the basic facts and material-which the detaining authority took into account must be made known to tine detenu for otherwise he would not be able to effectively contest the order made against him. So also if the grounds are vague, the detenu would not be able to make any effective representation against the order of detention.
6. Section 9(2) says that nothing in Sub-section (1) shall require the authority to disclose facts which it considers against public interest to disclose. The grounds of detention must disclose the basic facts except these which may not be disclosed in public interest. But mere allegation in the grounds that the detenu was involved in prohibition offences between 1982 and 1985 cannot be said to supply the basic facts required to show that there is reason to believe that the conduct of the detenu will adversely affect or is likely to adversely affect maintenance of public order. From the past conduct of the detenu, be having been involved in seven prohibition cases in the last three years, it can at the most be said that the detenu, a bootlegger, will indulge in similar activity in future. That without more cannot raise the inference that he will act in a manner prejudicial to the maintenance of public order. It must be shown that the detenu is engaged in or is making preparation for engaging in any activities which affect adversely or are likely to affect adversely the maintenance of public order to invoke the fiction of Section 3(4). The explanation to that Sub-section creates a further fiction that public order shall be deemed to have been affected adversely if the activities of the detenu is causing or is likely to cause harm, danger, alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Even in the counter affidavit all that is stated is; the potentiality of the detenu’s acts stated in the grounds of detention and the degree of its impact on the members of the community in the locality in which the act is committed, is the criterion to distinguish whether the detention pertains to the field of ‘public order’ or merely ‘Law and Order’, but if we turn to the grounds we find the bald mention of involvement in seven prohibition cases only. What is stated in the grounds is so vague that it would be difficult to effectively deal with the allegation.
7. It is difficult to understand on the basis of what material the detaining authority came to the conclusion that because the detenu was found in possession of liquor in the past an atmosphere of danger or fear or insecurity prevails amongst the residents of his locality. There is also no basic material to support the subjective satisfaction that his activity or continuance of the said activity is an impediment to the maintenance of public order. In the absence of any basic material whatsoever, it is difficult to understand how the detenu could make an effective representation against his detention. The ipse dixit of the detaining authority is not sufficient but the grounds of detention should disclose the basic facts on the basis whereof the subjective satisfaction required in law for the purpose of exercise of power under Section 3(1) of the Act is reached. In the absence of any mention about the basic facts, merely because the detenu was found in possession of illicit liquor in the past, it cannot be said that his activity adversely affects or is likely to affect the maintenance of public order in the concerned locality. The absence of basic material, therefore, denies to the detenu the right to make an effective representation conferred upon him by the Constitution. It is, therefore, difficult to sustain the impugned order of detention.
8. In the result this petition is allowed. The impugned order of detention is quashed. The detenu will be set at liberty at once unless required in any other matter. The rule is made absolute accordingly.