JUDGMENT
B.S. Kapadia, J.
1. The petitioner, who is the brother of the detenu Parshuram @ Pashiyo @ Pisi, Chandubhai Kahar has filed this application for quashing and setting aside the order of detention passed against the detenu dated 17th October, 1992 by the Commissioner of Police, Vadodara City, exercising powers under Section 3 of Gujarat Prevention of Anti-Social Activities Act (“PASA” for short), on his being satisfied that it is necessary to pass an order directing the detenu to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Vadodara City. The detenu was served with the order on the same day. Along with that order, the grounds of detention were also served on him. On perusal of the grounds of detention, it appears that there are three cases registered against the detenu. Out of these three cases, the first two cases are pending trial and the last one is under investigation. There are three statements of three witnesses recorded, but the names and addresses of these witnesses are not disclosed in the public interest exercising privilege under Section 9(2) of PASA. The detaining authority has also taken into consideration the other factors which were necessary to be considered for the purpose of passing the detention order against the detenu.
2. In the petition various grounds have been raised challenging the legality and validity of the impugned detention order. However, Mr. R.S. Sanjanwala, the learned Advocate appearing for the petitioner has mainly concentrated to the ground of non-supply of copies of the bail application and the bail order. He submitted that the application for bail and the bail order are the vital documents, particularly when the detenu is released on bail before the detention order is passed against him and when the aforesaid documents have been considered by the detaining authority for arriving at the subjective satisfaction, it is the duty of the detaining authority to supply the copies of the said vital documents to enable the detenu to make effective representation against the detention order. He further submits that though the detenu was supplied with copies of the aforesaid documents, the copy of the bail order supplied to the detenu, was not legible and therefore, it amounts to non-supply of copy of the said bail order and thereby, his right to make effective representation under Article 22(5) of the Constitution of India has been infringed.
3. In support of his aforesaid submission, he relies on a decision of the Supreme Court in the case of Smt. Dharmista Bhagat v. State of Karnataka and Anr. reported in 1989 Supple. II SCC 155. In the said case. It is held that it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Hence, the refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenu for making an effective representation infringed the detenu’s right under Article 22(5) of the Constitution.
4. In the said case, the decision in the case of Bhupinder Singh v. Union of India reported in 1987 SCC 234 equivalent to 1987 SCC (Cri.) 328 was relied on wherein it was held that the detenu made a complaint before the Advisory Board that the copies of the documents which were supplied to him alongwith the grounds of detention were not legible and he placed before the Advisory Board a copy of representation said to have been made by him for supply of legible copies of the documents. The legible copies of the documents were, however, supplied to the detenu after the detention order was confirmed. It was also held that the detenu was denied the opportunity of making a representation and as such, there was a clear contravention of the right guaranteed by Article 22 of the Constitution. Relying on the aforesaid decision, Mr. Sanjanwala, the learned Advocate appearing for the petitioner has submitted mat in the present case the copy of the bail order supplied to the detenu, is not legible and merefore, it amounts to non-supply of the copy of the said document, affecting the detenu’s right of making an effective representation.
5. Mr. Sanjanwala, has also relied on some of the judgments of This Court wherein also, depending upon the facts of each case, the Court held mat the documents referred to therein were not legible. Now, whether a document is a legible one or not is a question of fact and which the Court should examine itself and further the Court has to consider the nature of illegibility and evaluate the effect on the right of representation in the context of the importance in the formation of satisfaction for detention. This observation of examining the extent and nature of illegibility and evaluate its effect on the right of representation in the context of the importance in the formation of satisfaction for detention has been made by the Supreme Court in the case of Union of India and Ors. v. Mohammed Ahmed Ibrahim and Ors. reported in 1993 SCC (Cri.) 269. Now, considering the case from the angle of above observation of the Supreme Court, on reading page 43 of the paper book, it is clear mat the copy of the bail application supplied to the detenu is quite legible. Below the said application, mere is an order wherein the figure 2.000/- at the end of the rubber stamp affixed is legible, but the remaining part of the rubber stamp put is not legible. The date mentioned is also fairly legible, i.e., 16th October, 1992. In the grounds of detention also, there is a reference to the bail application and the detenu having been released on bail. When that is so and when we read it in the context, there should not be any difficulty in reading that the bail order was in respect of bail of Rs. 2,000/- and therefore, in the present case, when we consider this fact in the light of the observation made herein-above, in our opinion, the petitioner should not have any difficulty in making an effective representation against the detention order particulary when the detenu himself has taken advantage of the bail order, he having been released on bail.
6. It may be observed that there may be bail orders in which certain conditions like not to enter a particular area or to report his presence once in a week or fortnight before a particular Police Station, are imposed, and if such conditions imposed are not legible in the copies supplied to the detenu, that would affect the detenu’s right of making an effective representation. But in the present case, the bail order was a usual one which was passed by affixing a rubber stamp wherein only the figure of Rs. 2,000/- is mentioned and date is also put. Under the circumstances, this contention raised by Mr. Sanjanwala has no substance and hence cannot be accepted.
7. His second contention is that the detaining authority has wrongly exercised the powers under Section 9(2) of PASA Act and by such wrong exercise of powers the detenu, right to make a representation under Article 22(5) of the Constitution has been infringed. He further elaborates his submission by pointing out that the statements of the witnesses have been recorded on 16th October, 1992 and that the said statements have been verified by the Superintendent of Police, C-Division, Baroda City on 16th October, 1992. It has been pointed out by the learned A.G.P. Mr. Y.M. Thakkar that the proposal in the case was made on 16th October, 1992 and the order of detention was passed on 17th October, 1992. It is rather curious that the entire bunch of material was supplied by the sponsoring authority at the time of making the proposal and that has been promptly accepted by the detaining authority and passed the order on the next day itself. At the time of exercising the privilege under Section 9(2) of PASA, a balance is required to be struck between the public interest on the one hand and the right of the detenu to make a representation under Article 22(5) of the Constitution on the other. If the statements of the witnesses are to be relied on, they must be genuine statements of the real persons. The detenu would like to verify as to whether these persons are fictitious persons or not and/or whether their statements are bogus statements or not? Unless the detenu knows the names and addresses of the parsons who have given the statements, he cannot verify the aforesaid facts and if the names and addresses along with the contents of the statements are supplied to the detenu, he can have full opportunity to verify the position and make an effective representation on that basis. As against this, there is a provision under Section 9(2) carved out on the basis of Article 22(5) of the Constitution which provides mat nothing in Sub-section (1) shall require the authority making such order to disclose facts which it considers to be against the public interest to disclose. Therefore, it is the duty of the detaining authority to strike a balance as stated above, that in the public interest, the names and addresses of the witnesses could not be disclosed. This should not be treated as an idle formality as it affects the public interest on the one hand and the right of the detenu on the other. When that is so, the detaining authority is expected to do some exercise before actually exercising the privilege under Section 9(2) of PASA. Looking to the facts and circumstances of the case, it is clear, as stated hereinbefore, that the verified statements were also placed before the detaining authority and there was no sufficient time for the detaining authority to examine the possibility of exercising the power under Section 9(2), as the proposal was made on 16th October, 1992 and the order of detention was passed on the following day, i.e., 17th October, 1992, nor is there any material to show as to how he examined the necessity of exercising the power under Section 9(2). Under the circumstances, in our view, it is a wrong exercise of power under Section 9(2) which has affected the detenu’s right of making an effective representation under Article 22(5) of the Constitution of India and therefore, the continued detention of the detenu is bad and illegal and the impugned detention order is required to be quashed and set aside.
8. In the result, the petition is allowed. The impugned detention order is quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required for any other purpose. Rule is made absolute.