IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 3720 of 1996
For Approval and Signature:
Hon'ble MR.JUSTICE K.R.VYAS
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
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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PUSHPABEN WIFE OF BABUBHAI MANSUKHBHAI NAYKA
Versus
POLICE COMMISSISONER
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Appearance:
MR SUNIL C PATEL, Advocate for the Petitioner.
MR UR BHATT, learned Assistant Government Pleader for
the Respondents.
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CORAM : MR.JUSTICE K.R.VYAS
Date of decision: 24/07/96
ORAL JUDGEMENT
Petitioner Pushpaben, who is the mother of detenu
Raju alias Rajesh alias Kaliyo Babubhai Nayka, by way of
this petition under Article 226 of the Constitution of
India, has challenged the legality and validity of the
detention order dated 5-1-1996 passed against her son
under section 3 (1) of the Gujarat Prevention of
Anti-Social Activities Act, 1985 by the Commissioner of
Police, Surat City.
The detaining authority , in the grounds of
detention supplied to the detenu, after considering the
two cases registered against him for offences punishable
under sections 324, 452, 504 and 114 of the the Indian
Penal Code and the statements of three witnesses making
allegations against the detenu about the anti-social and
naferious activities being carried on by him, has
recorded a finding that the detenu is a ” dangerous
person ” within the meaning of section 2 (c) of the said
Act and with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order, it
was necessary to pass the order of detention and,
therefore, the impugned order of detention has been
passed against the defenu which is under challenge in
this petition.
Since this petition is required to be allowed on
the first contention raised by Mr. S.C.Patel, learned
Advocate for the petitioner, it is not necessary to refer
to and deal with the other contentions raised by him.
Mr. Patel submitted that the exercise of the power under
section 9(2) of the said Act by the detaining authority
claiming privilege of not disclosing the identity of the
witnesses to the detenu is not genuine inasmuch as,
according to Mr. Patel, material particulars, which are
sufficient to disclose the identity of the witnesses have
been disclosed by the detaining authority in the grounds
of detention supplied to the detenu.
The submission made by Mr. Patel about the
genuineness of the exercise of the power under section 9
(2) of the said Act, in my opinion, is well founded. In
the copies of the statements of the witnesses supplied to
the detenu, the detaining authority has kept blanks at
the material places with a view to see that the identity
of the witnesses is not disclosed to the detenu.
However,in the grounds of detention supplied to the
detenu, the detaining authority has given material
particulars about the witnesses. The detaining authority
has given the material particulars as regards the date,
the time, the locality and the particular places where
the incidents took place. The detaining authority has
also stated with whom and for what purpose the detenu had
gone to the place of the witness, or at which places the
witnesses met him, and has stated the specific reasons
for which the witnesses were beaten. In my opinion, all
these details virtually disclose the identity of the
witnesses to the detenu. On one hand the detaining
authority has claimed privilege and invoked the
provisions of section 9 (2) withholding the identity of
the witnesses and, on the other hand ,it has given
material particulars apparently disclosing the identity
of the witnesses. Thus, in my opinion, the power
exercised by the detaining authority of claiming
privilege under section 9 (2) of the said Act is not
genuine. In other words, the said power has been
exercised without application of mind and mechanically.
By disclosing such material particulars indicating the
total identity of the witnesses , the detenu was denied
his right of making an effective representation against
his detention guaranteed under Article 22 (5) of the
Constitution of India and therefore, the continued
detention of the detenu has become illegal and is
vitiated.
In the result this petition is allowed. The order
of detention dated 5-1-1996 is quashed and set aside. The
detenu Raju alias Rajesh alias Kaliyo Babubhai Nayka is
directed to be set at liberty forthwith if his detention
is not required for any other purpose. Rule is made
absolute accordingly with no order as to costs.
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True copy
