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Dharamdas Shamlal Agarwal vs Police Commissioner & Anr on 16 March, 1989

Supreme Court of India
Dharamdas Shamlal Agarwal vs Police Commissioner & Anr on 16 March, 1989
Equivalent citations: 1989 AIR 1282, 1989 SCR (2) 43
Author: S Pandian
Bench: Pandian, S.R. (J)
           PETITIONER:
DHARAMDAS SHAMLAL AGARWAL

	Vs.

RESPONDENT:
POLICE COMMISSIONER & ANR.

DATE OF JUDGMENT16/03/1989

BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
RAY, B.C. (J)

CITATION:
 1989 AIR 1282		  1989 SCR  (2)	 43
 1989 SCC  (2) 370	  JT 1989 (1)	580
 1989 SCALE  (1)658
 CITATOR INFO :
 F	    1989 SC1881	 (3)


ACT:
	    Gujarat Prevention of Anti-Social Activities Act,  198
5:
	SS.  3(2) & 6---Detention Order--Validity  of--Material	 a
nd
	vital  fact having a bearing on the issue not placed  befo
re
	detaining authority--Held, requisite subjective satisfacti
on
	vitiated by non_application of mind.



HEADNOTE:
	    The	 petitioner was detained under an order	 dated	17
th
	September, 1988 made by the detaining authority under  sub
s.
	(2) of s. 3 of the Gujarat Prevention of Anti-Social Activ
i-
	ties Act, 1985 with a view to prevent him from acting in a
ny
	manner	prejudicial to the maintenance of public order.	 T
he
	grounds	 of  detention mentioned  five	offences  register
ed
	against him with police records, out of which the first	 o
ne
	under  s. 324 IPC was stated to have been  compromised,	 t
he
	second under s. 332 IPC and the third under ss. 148 and	 3
07
	IPC respectively were stated to be pending trial, the four
th
	under  s.  302 IPC was stated not proved,  while  the  fif
th
	under s. 302 IPC was stated to be in the court.
	    The	 Government approved the said order on 21st  Septe
m-
	ber,  1988.  The detenu submitted his  representation  dat
ed
	22nd  September,  1988 to the first respondent	who  by	 h
is
	order  dated  30th  September, 1988 rejected  the  same.
He
	thereupon,  filed  this	 petition under Article	 32  of	 t
he
	Constitution.
	    It	was  contended for the petitioner that he  has	be
en
	acquitted  even	 on 26th August, 1988 in the case  shown
at
	serial No. 2 in the Table appended to the grounds of  dete
n-
	tion, and on 6th June, 1988 in the case shown at Serial	 N
o.
	3, that this material and vital fact of his acquittal in t
he
	said cases had not been placed before the detaining author
i-
	ty and this non-placing and the consequent non-considerati
on
	of  the	 said material likely to influence the mind  of	 t
he
	detaining authority vitiates the subjective satisfaction a
nd
	invalidates  the detention order, that the names of his	 s
o-
	called	associates were nowhere disclosed which	 fact  wou
ld
	show  either  the  authority did not know as  to  who  the
se
	associates  were or knowing their names has  refrained	fr
om
	furnishing  it to the detenu thereby disabling him  to	ma
ke
	his effective representation, and
	44
	that the grounds of detention otherwise were vague or  def
i-
	cient. For the respondent it was contended that each activ
i-
	ty of the petitioner was a separate ground of detention	 a
nd
	that the fact that the petitioner was acquitted in the	sa
id
	cases was of no consequence.
	Allowing the writ petition,
	    HELD: The requisite subjective satisfaction, the  form
a-
	tion  of  which	 is a condition precedent to  passing  of
 a
	detention  order,  will get vitiated if	 material  or  vit
al
	facts which would have bearing on the issue and weighed	 t
he
	satisfaction of the detaining authority one way or the oth
er
	and influenced his mind are either withheld or suppressed
by
	the  sponsoring authority or ignored and not  considered
by
	the detaining authority before issuing the detention  orde
r.
	[51D-E]
	    In	the  instant case, at the time	when  the  detaini
ng
	authority  passed  the	detention order the  vital  fact
of
	acquittal of the detenu in cases mentioned at serial Nos.
 2
	and  3 had not been brought to his notice and on  the  oth
er
	hand  it was withheld and the detaining authority was  giv
en
	to  understand	that the trial of those cases  was  pendin
g.
	This  non-placing  of the material fact	 resulting  in	no
n-
	application  of the mind of the detaining authority  to	 t
he
	said  fact has vitiated the requisite  subjective  satisfa
c-
	tion,  rendering the impugned detention order  invalid.	 T
he
	same is, therefore, set-aside. The detenu be set at  liber
ty
	forthwith. [51E, F, G, H]
	    S.K.  Nizamuddin  v. State of West Bengal, AIR  1974
SC
	2353;  Suresh Mahato v. The District Magistrate,  Burdwan



JUDGMENT:

Ors., AIR 1975 SC 728; Asha Devi v. Additional Secretary
to
the Government of Gujarat & Anr., [1979] 2 SCR 215 and Si
ta
Ram Somani v. State of Rajasthan & Ors., [1986] 2 SCC
86
referred to.

Shiv Rattan Makim v. Union of India & Ors., [1985] Sup
p.

(3) SCR 843 and Subharta v. State of West Bengal [1973] S
CC
250, distinguished.

&
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 5
37
of 1988.

(Under Article 32 of the Constitution of India.)
Dr. Y.S. Chitale, M.K. Pandit, P.H. Parekh, J.H. Pare
kh
and M.N. Sompal for the Petitioner.

45

P.S. Poti, Mrs. H. Wahi and M.N. Shroff for the Respondent
s.

The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. This is a petition under Artic
le
32 of the Constitution of India challenging the legality a
nd
validity of the order of detention dated 17.9.1988 passed
by
the detaining authority (the Commissioner of Police, Ahmed
a-

bad City) clamping upon the petitioner (the detenu herei

n)
the impugned order of detention under Sub-section (2)
of
Section 3 of the Gujarat Prevention of Anti-Social Activ
i-

ties Act, 1985 on the ground that he on the materials plac
ed
before him was satisfied that it was necessary to make th
is
order of detention with a view to preventing the detenu fr
om
acting in any manner prejudicial to the maintenance
of
public order in the area of Ahmedabad City and directed t
he
detenu to be detained in Sabarmati Central Prison. In purs
u-

ance of the said order, the detenu has been detained in t
he
aforesaid prison.

The Government approved the order of detention
on
21.9.1988. The detenu submitted his representation dat
ed
22.9.1988 to the Ist respondent who by his order dat
ed
30.9.1988 rejected the same. Hence this Writ Petition.
Before adverting to the arguments advanced by Dr. Ch
i-

tale, on behalf of the detenu; we would like to produce t
he
relevant portion of the grounds of detention which rea
ds
thus:

” …… As such you are a dangerous person as defined
in
section 2(c) of the said Act, and known as dangerous perso
n.

As you with the aid of your Associates create dangero
us
atmosphere in the said vicinity you disturb public peac
e,
maintenance and as such following offences were register
ed
against you with Police Records, and in which you we
re
arrested.

	      Sr. Plice	      Offence	  Section      Decision
	     No. Station       Regd. No.
	      1.  Sabarmati  140/81    324, 114	       Compro-
					IPC	       mised
						       16.2.82
	      2.  Sherkotda  411/82	 332,323,      P.T.
					 114 IPC
	46
	     3.	 Sherkotda  412/82    PIC 147, 148     P.T.
				    149,307 BP Act
				      135(1)
	     4.	 Sherkotda   452/85    IPC 302,	       Not
					 109,3	       proved
	     5.	 Sabarmati    346/87  IPC 302,	       In the
				       109,34	       Court

While considering complaints, in the above cases, Identif
i-

cation (Chehra Nissan) Register, and charge-sheets co
n-

tents carefully, it is found that you, with the aid of yo
ur
associates, in the said area, give threats to innoce
nt
people, and cause injuries to them by showing dangero
us
weapons that like Acid, Knife, sharp weapons. As such y
ou
commit offences punishable for causing injuries to hum
an
body and which are punishable in Indian Pen
al
Code ………. ”

Dr. Chitale, the learned counsel for the petition
er
took us through the grounds of detention and the oth
er
relevant records, particularly the copies of the statemen
ts
of witnesses on the basis of which the detaining authori
ty
has claimed to have drawn his subjective satisfaction f
or
passing this impugned order of detention and raised vario
us
contentions inter-alia contending; (1) The material a
nd
vital fact, namely, the acquittal of the detenu in the cas
es
registered in Crime Nos. 411 and 412 of 1982 of Sherkot
da
Police Station as shown at Serial Nos. 2 and 3 in the tab
le
appended to grounds of detention which fact would ha
ve
influenced the minds of the detaining authority one way
or
the other on the question whether or not to make the dete
n-

tion order, has not been placed before the detaining autho
r-

ity and this non-placing and the consequent non-consider
a-

tion of the said material likely to influence the minds
of
the detaining authority vitiates the subjective satisfacti
on
and invalidates the detention order; (2) Leave apart, t
he
non-disclosure of the names of the witnesses on whose stat
e-

ments the detaining authority placed reliance to draw h
is
subjective satisfaction, claiming privilege under Secti
on
9(2) of the Act, the grounds of detention otherwise a
re
vague or deficient and lacking details with regards to t
he
names of the ‘associates’, for the disclosure of which
no
privilege could be claimed and hence it was not possible f
or
the detenu in the absence of the names of the so call
ed
‘associates’ to make an effective representation against t
he
order of detention, the deprivation of which amounts to
an
infringement of the
47
constitutional safeguard provided under Article 22(5) of t
he
Constitution of India; (3) Though the authority has me
n-

tioned in more than one place the words ‘your associate
s’
which fact evidently should have influenced the mind of t
he
detaining authority in making this impugned order, the nam
es
of the associates are nowhere disclosed which fact wou
ld
show either the authority did not know as to who the assoc
i-

ates were or knowing the names of the associates, he h
as
refrained from furnishing it to the detenu thereby disabli
ng
the detenu to make his effective representation; and (4) T
he
materials placed before the detaining authority were hard
ly
sufficient to draw any conclusion that the alleged activ
i-

ties of the detenu were detrimental to the ‘ ‘ maintenan
ce
of public order..’ ‘
A plethora of decisions were cited by Dr. Chitale. T
he
learned counsel for the respondent, Mr. Poti vehement
ly
urged that the contentions urged by Dr. Chitale do not mer
it
consideration and the detaining authority in the prese
nt
case is justified in passing this order of detention. M
r.

Poti also cited number of decisions in support of his su
b-

missions.

We shall now examine these contentions in seriatim.
In the grounds of detention five cases register
ed
against the detenu in respect of which he had been arrest
ed
are taken into consideration by the detaining authority
to
draw his subjective satisfaction that the detenu was di
s-

turbing the maintenance of public order. Out of the fi
ve
cases, two cases mentioned under Serial Nos. 2 and 3 a
re
shown as ‘P.T. ‘, that is pending trial. In other words
on
17.9.88 i.e. the date of passing the order of detention, t
he
detaining authority was of the opinion that the trials
of
both the cases were not over, though actually the detenu h
ad
been acquitted even on 26.8.1988 in the case relating
to
Crime No. 411 of 1982 and on 5.6.88 in the case relating
to
Crime No. 412/82. Though the acquittal of both the cases a
re
admitted, the date of acquittal of Crime No. 411/82 is giv
en
as 6.7.88 in the counter. In the Writ Petition two grou
nd
Nos. 10 and 11 are with reference to these cases. They re
ad
as follows:

“10. The petitioner states that in the grounds of detenti
on
the detaining authority has mentioned erroneously that Ca
se
No. 411 of 1982 is pending. In fact, the said Case w
as
decided by the Court on 26.8.1988 and the petitioner w
as
acquitted by the judgment dated 26.9.1988 delivered by t
he
Metropolitan Magistrate, Court No. 7, Ahmedabad. When
48
grounds of detention were passed and when the detenti
on
order was passed in September, 1988, the detaining authori
ty
has taken a non-existing fact into account that the sa
id
case was pending trial. The detention is liable to
be
quashed on this ground also.

11. Likewise, the grounds of detention mention
ed
that Case No. 412 of 1982 is pending which is erroneous. T
he
said case was decided on 5.6.1988 and the petitioner w
as
acquitted. The detention is liable to be quashed for taki
ng
this non-existing ground.”

These two grounds are answered by the detaining author
i-

ty in paragraphs 12 and 13 of his affidavit in reply swo
rn
in December 1988 which read thus:
“12. With reference to the averments made in para 10 of t
he
petition, I say that the same are not true’ and deni
ed
hereby. I say that the petitioner was acquitted in Crime N
o.

411 of 1982 by the Metropolitan Magistrate, Court no.
7,
Ahmedabad by an order dated 6.7.1988. However, it is submi
t-

ted that each activity of the petitioner is a separa
te
ground of detention against the petitioner and, therefor
e,
even if the petitioner is acquitted in the said Crimin
al
Case, the detention order is not vitiated on that count.

13. With reference to the averments made in para 11 of t
he
petitioner, I say that the same are not true and deni
ed
hereby. I say that it is true that in the Criminal Case N
o.

412/82 the petitioner was acquitted by the Sessions Cou
rt
No. 20, Ahmedabad on 5.6.1984. However, as submitted here
i-

nabove, each activity of the petitioner is a separate grou
nd
for detention of the petitioner, and, therefore, the fa
ct
that the petitioner was acquitted in Criminal Case no. 4
11
(Sec 412) of 1982 has no bearing on the detention order a
nd
the detention order cannot be said to be vitiated on th
at
count.”

Though as per Section 6 of the Act the grounds of dete
n-

tion are severable and the order of detention shall not
be
deemed to be invalid or inoperative if one ground or some
of
the grounds are invalid, the question that arises for co
n-

sideration is whether the detaining authority was real
ly
aware of the acquittal of the detenu in those two cases
49
mentioned under Serial Nos. 2 and 3 on the date of passi
ng
the impugned order. It is surprising that the detaini
ng
authority who has specifically mentioned in the grounds
of
detention that the petitioner’s cases 2 and 3 were pendi
ng
trial on the date of passing the order of detention has co
me
forward with a sworn statement in reply, filed nearly thr
ee
months after signing the grounds of detention, that he kn
ew
that the accused had been acquitted in both the cases. T
he
averments made in paragraphs 12 and 13 in the affidavit
in
reply are not clear at what point of time the detaini
ng
authority came to know of the acquittal of the detenu
in
both the cases. At any rate, it is not his specific ca
se
that the fact of acquittal was placed before him for consi
d-

eration at the time of passing the impugned order. But wh
at
the authority repeatedly states is that “each activity
of
the petitioner is a separate ground of detention” and ad
ds
further that “the fact that the petitioner was acquitted
in
Criminal Case No. 411/82 and 412/82 is of no consequence
“.

We are unable to comprehend the explanation given by t
he
detaining authority. It has been admited by Mr. Poti th
at
the sponsoring authority initiated the proceedings a
nd
placed all the materials before the detaining authority
on
14.9.1988 by which date the petitioner had already be
en
acquitted in the above said two cases. Thus it is clear th
at
either the sponsoring authority was not aware of the acqui
t-

tals of those two cases or even having been aware of t
he
acquittals had not placed that material before the detaini
ng
authority. So at the time of signing the order of detentio
n,
the authority should have been ignorant of the acquittal
s.

Evidently to get over the plea of the detenu in the wr
it
petition in this regard for the first time in the counte
r,
the detaining authority is giving a varying statement as
if
he knew about the acquittal of the detenu in both the case
s.

As ruled by this Court in Shiv Ratan Makim v. Union of Ind
ia
& Ors., [1985] Supp. (3) SCR 843 at page 848 “even if
a
criminal prosecution fails and an order of detention is th
en
made, it would not invalidate the order of detention” b
e-

cause as pointed out by this Court in Subharta v. State
of
West Bengal, [1973] 3 SCC 250 “the purpose of preventi
ve
detention being different from conviction and punishment a
nd
subjective satisfaction being necessary in the former whi
le
proof beyond reasonable doubt being necessary in t
he
latter”, the order of detention would not be bad mere
ly
because the criminal prosecution has failed. In the prese
nt
case, we would make stress, not on the question of acquitt
al
but on the question of non-placing of the material and vit
al
fact of acquittal which if had been placed, would ha
ve
influenced the minds of the detaining authority one way
or
the other. Similar questions arose in Sk. Nizamuddin
v.

State of West Bengal, AIR 1974 SC 2353 in which the dete
n-

tion order was passed under the provisions of Maintenance
of
50
Internal Security Act. In that case the ground of detenti
on
was rounded on a solitary incident of theft of alumini
um
wire alleged to have been committed by the detenu therei
n.

In respect of that incident a criminal case was filed whi
ch
was ultimately dropped. It appeared on ‘record that t
he
history sheet of the detenu which was before the detainin
g.

authority did not make any reference to the criminal ca
se
launched against the petitioner, much less to the fact th
at
the prosecution had been dropped or the date when the pet
i-

tioner was discharged from the case. In connection with th
is
aspect this Court observed as follows:
“We should have thought that the fact that a criminal ca
se
is pending against the person who is sought to be proceed
ed
against by way of preventive detention is a very materi
al
circumstance which ought to be placed before the Distri
ct
Magistrate. That circumstance might quite possible have
an
impact on his decision whether or not to make an order
of
detention. It is not altogether unlikely that the Distri
ct
Magistrate may in a given case take the view that since
a
criminal case is pending against the person sought to
be
detained, no order of detention should be made for t
he
present, but the criminal case should be allowed to run i
ts
full course and only if it fails to result in convictio
n,
then preventive detention should be resorted to. It would
be
most unfair to the person sought to be detained not
to
disclose the pendency of a criminal case against him to t
he
District Magistrate.”

It is true that the detention order in that case was s
et
aside on other grounds but the observation extracted abo
ve
is quite significant. The above observation was subsequent
ly
approved by this Court in Suresh Mahato v. The Distri
ct
Magistrate, Burdwan and Others, AIR 1975 SC 720 and in As
ha
Devi v. Additional Chief Secretary to the Government
of
Gujarat & Ant., [1979] 2 SCR 215. In the latter case (i.
e.

Asha Devi), it has been pointed out:
” …….. if material or vital facts which would infl
u-

ence the minds of the detaining authority one way of t
he
other on the question whether or not to make the detenti
on
order, are not placed before or are not considered by t
he
detaining authority it would vitiate its subjective sati
s-

faction rendering the detention order illegal.”

51

In Sita Ram Somani v. State of Rajasthan and Other
s,
[1986] 2 SCC 86 certain documents which were claimed to ha
ve
been placed before the Screening Committee in the fir
st
instance were not placed before the detaining authority a
nd
consequently there was no occasion for the detaining autho
r-

ity to apply its mind to the relevant material. In t
he
circumstances of that case, a principal point was rais
ed
before this Court that there was no application of mind
by
the detaining authority to those vital materials which we
re
with-held. This Court, while answering that contenti
on
observed thus:

“No one can dispute the right of the detaining authority
to
make an order of detention if on a consideration of t
he
relevant material, the detaining authority came to t
he
conclusion that it was necessary to detain t
he
appellant.’But the question was whether the detaining a
u-

thority applied its mind to relevant considerations. If
it
did not, the appellant would be entitled to be released.”

From the above decisions it emerges that the requisi
te
subjective satisfaction. the formation of which is a cond
i-

tion precedent to passing of a detention order will g
et
vitiated if material or vital facts which would have beari
ng
on the issue and weighed the satisfaction of the detaini
ng
authority one way or the other and influenced his mind a
re
either withheld or suppressed by the sponsoring authority
or
ignored and not considered by the detaining authority befo
re
issuing the detention order. It is clear to our mind that
in
the case on hand, at the time when the detaining authori
ty
passed the detention order this vital fact, namely, t
he
acquittals of the detenu in case Nos. mentioned at seri
al
Nos. 2 and 3 have not been brought to his notice and on t
he
other hand they were withheld and the detaining authori
ty
was given to understand that the trial of those cases we
re
pending. The explanation given by the learned counsel f
or
the respondents, as we have already pointed out, cannot
be
accepted for a moment. The result is that the nonplacing
of
the material fact–namely the acquittal of detenu in t
he
above-said two cases resulting in non-application of min
ds
of the detaining authority to the said fact has vitiated t
he
requisite subjective satisfaction, rendering the impugn
ed
detention order invalid.
Since we have now come to the conclusion that the ord
er
of detention is to be set aside on the first ground itsel
f,
we are not inclined to traverse on other grounds. In t
he
premises, the impugned order is set aside and the Wr
it
Petition is allowed. We direct that the detenu be set
at
liberty forthwith.

P.S.S. Petition allowed.

52

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