IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 6955 of 2001
For Approval and Signature:
Hon'ble MR.JUSTICE A.L.DAVE
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1. Whether Reporters of Local Papers may be allowed : NO
to see the judgements?
2. To be referred to the Reporter or not? : NO
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? :
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HAIDARKHAN LALKHAN PATHAN
Versus
COMMISSIONER OF POLICE
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Appearance:
1. Special Civil Application No. 6955 of 2001
MR ANIL S DAVE for Petitioner No. 1
MR SS PATEL, AGP, for Respondents No. 1-3
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CORAM : MR.JUSTICE A.L.DAVE
Date of decision: 09/01/2002
ORAL JUDGEMENT
1.Commissioner of Police, Ahmedabad City,
Ahmedabad, passed an order on May 5, 2001, in exercise of
powers under Section 3(1) of the Gujarat Prevention of
Anti-Social Activities Act, 1985 (“PASA Act” for short),
detaining the petitioner under the provisions of the said
Act.
2.The detaining authority took into consideration
three offences registered against the petitioner, so also
the statements of two anonymous witnesses. The detaining
authority considered the activities of the detenu as that
of a dangerous person as defined under the PASA Act and
observed that the petitioner is required to be
immediately prevented from pursuing his activities, which
are detrimental to public order. The authority also
considered the possibility of resorting to less drastic
remedies and came to conclusion that detention under PASA
Act is the only remedy that can be resorted to.
3.The petitioner challenges the order of detention
on various grounds. Mr.Shukla, learned advocate
appearing for Mr. Anil Dave, learned advocate for the
petitioner, has restricted his arguments to the ground
that there is improper exercise of powers under Section
9(2) of the PASA Act. He has drawn attention of this
Court to the fact that the statements of anonymous
witnesses were verified on 1.5.2001 and the order
detention was passed on 2.5.2001. The authority,
therefore, had no time to undertake the exercise of
verifying the correctness and genuineness of the fear
expressed by the witnesses qua the detenu. Mr. Shukla
submitted further that the offences registered against
the detenu are of 1999 and 2000 and, therefore, there is
no livelink between the offences registered against the
petitioner and the order of detention. He, therefore,
urged that the petition may be allowed.
4.Mr. Patel, learned Assistant Government Pleader,
has opposed this petition.
5.Considering rival side contentions, it appears
that the statements of anonymous witnesses have been
recorded on April 30, 2001. The same have been verified
by the detaining authority on May 1, 2001 and the order
is passed on May 2, 2001. So far as the statements of
anonymous witnesses are concerned, it may be noted that
the detaining authority has observed that the fear
expressed by the witnesses and the statements and the
statements are correct and genuine. Barring this
statement in the grounds of detention, there appears
nothing to indicate an exercise having been undertaken by
the detaining authority for verifying correctness and
genuineness of the statements and the fear expressed by
the witnesses. The detaining authority has to take into
consideration the background, the antecedents, the
character, etc. of the detenu while considering the need
for exercise of powers under Section 9(2) of the PASA
Act. The authority has to scale the right of the detenu
of making an effective representation on the one hand and
the public interest on the other and has to strike a
balance between the two. The detaining authority has not
filed any affidavit nor is there any contemporaneous
material to indicate undertaking of such exercise by the
detaining authority and, therefore, the exercise of
powers under Section 9(2) of the PASA Act can be taken to
have vitiated. No reliance, therefore, can be placed on
these statements for sustaining the order of detention.
There is improper exercise of powers under Section 9(2),
as there is no material to indicate the exercise as
stated above (Bai Amina v. State of Gujarat & Ors., 1981
GLR 1186 and Kalidas Chandubhai Kahar v. State of
Gujarat & Ors., 1993(2) GLR 1659).
6.Adverting to the offences registered against the
detenu, they relate to the year 1999 and 2000.
Therefore, they are stale cases and there is no livelink
between the offences registered against the petitioner
and the order of detention. Therefore, the subjective
satisfaction recorded by the authority for immediately
preventing the petitioner from pursuing his activities is
vitiated.
7.Neither the statements nor the offences
registered against the petitioner form a valid ground for
detention. In this view of the matter, the petition
deserves to be allowed.
8.In the result, the petition is allowed. The
impugned order of detention dated May 2, 2001, passed
against the detenu is hereby quashed. The
detenu-Haidarkhan Lalkhan Pathan is ordered to be set at
liberty forthwith, if not required in any other matter.
Rule is made absolute with no orders as to costs.
[ A.L. DAVE, J. ]
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