JUDGMENT
K.J. Vaidya, J.
1. “Subjective Satisfaction”!! What it is? What indeed is its scope and purport, and accordingly therefore, the true meaning of it, is the subject-matter of discussion in this petition, so as to understand its implication in proper perspective, vis-a-vis the aspect of Non-application of mind, more often urged and also occasionally allowed declaring ab initio invalid the impugned order of detention!!
2. Yakub Ismail Chhipa, by this petition under Article 226 of the Constitution of India, has moved this Court challenging the impugned order of detention dated 21-10-1994, passed against him Under Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985, by the District Magistrate, Bharuch, inter alia praying for quashing and setting aside the same and to set him at liberty forthwith. He has been detained as a “bootlegger”, as defined in Section 2(b) of the PASA, on several allegations as stated in detail in the grounds of detention.
2A. Mr. H.R. Prajapati, the learned Advocate while challenging the impunged order of detention has vehemently contended that since the said order suffers from the patent vice of the non-application of mind on the part of the Detaining Authority, the same deserves to be quashed and set aside at-once and accordingly the petitioner be set at liaberty forthwith. Making good this contention, Mr. Prajapati has invited attention of this Court to the relevant portion of one of the grounds of the detention which pertains to the complaint No. 7 wherein it is alleged that “on 15-6-1994 at 16-40 hours the police personnel of Nabipura Police Station had arrested the petitioner and his associates when they were found transporting 90 litres of country liquor in a rickshaw bearing No. GRV-2658. Accordingly on the very day, the offences unde Sections 66(b), 65(e) and 81 of the Bombay Prohibition Act, 1949, came to be registered against the petitioner as C.R. No. III-169/94 at Nabipura Police Station, wherein he was ultimately released on bail in sum of Rs. 500/- on his executing the personal bond of the like amount. It is further stated in the alleged grounds of detention that since these offences were bailable, as per the usual practice, on the accused furnishing surieties and filling up the personal bond before the concerned police station officer itself, he is immediately released on bail. In such cases of bailable offences, it is indeed not necessary to submit any bail application or for that purpose to pass any order thereunder! Mr. Prajapati thus after laying the factual foundation for his arguments from the grounds of detention has invited the attention of this Court to Section 119 of the Prohibition Act, 1949, wherein it is specifically provided that the offences under Section 65, 67, 67(1)(a) and 68 of the Act shall be non-bailable offences. According to Mr. Prajapati under the circumstances despite the fact that the alleged offence under Section 65(e) is a non-bailable offence, still however, amazingly enough in the grounds of detention, signed by no less an authority then the District Magistrate himself, it has been described as a bailable offence!! According to the learned Advocate Mr. Prajapati this is quite startling and ex-facie demonstrates non-application of mind on the part of the Detaining Authority. Remotely, even if the concerned police officer somehow committing the alleged mistake whereby despite the alleged offence being under Section 65(e) a non-bailable, he released the petitioner on bail without producing him before the Court which was the only competent functionary under the Code to pass order of bail, but then the Detaining Authority, an experienced, seasoned officer will certainly not commit such a patent mistake! It is from this angle only that had indeed the Detaining Authority himself prepared the grounds of detention then the glaring mistake like the one that has crept-in in the present case would not have occurred at all!! Thus, this serious mistake according to Mr. Prajapati clearly indicates that the Detaining Authority has mechanically signed the ready-made grounds of detention and the detention order passed thereunder without subjecting it to his subjective satisfaction. This per se is fatal enough to invalidate the detention order!!
3. Heard Mr. M.R. Raval, the learned AGP who in fact had indeed no answer to the indisputable contention raised!! Thus, the contention raised by Mr. Prajapati having indeed a great force fully carries the point to the hilt to allow this petition.
4. In fact, the difference between the bailable offence and non-bailable offence is indeed too elementary, distinct and glaring enough to know and understand it who is merely a student of law rather much less than him the police personnel who day-in and day-out has to deal with such offences, under the Prohibition Act, and in that view of the matter by no stretch of imagination even a mistake of the type can be committed in describing the alleged offence under Section 65(e) as bailable offence. Further still, the matter does not and cannot simply rest here as on seeing the bail-bond taken from the petitioner for the alleged offence under Section 65(e) it appears that the petitioner has been ordered to be released on bail by the Police Station Officer himself!! It is simply strange as to how wherein the offence is per se non-bailable, a police station officer could ever have released the accused on bail!! In fact, the power to release the accused on bail in cases of non-bailable offences stands vested in the Appropriate Courts only!! And yet the concerned PSO arrogating the said power unto himself has dared to illegally release the detenu on bail defying the express legal bounds in the Code!! Such illegal police practices are scandlous enough and fraught with very many dangerous proposition and is clear and gross transgression of Law! Such an illegal police excess and trespass into well-defined bail jurisdiction of the Court under the Code is simply unheard, unthinkable and unbelievable and yet one has to believe it on reading the said order! This being not permissible, rather quite reprehensible the same is required to be sternly depricated!! Taking it that for whatever reason the Police Station Officer committed a mistake, but then at the same time such mistakes not being permissible, henceforth the authorities shall see to it that by immediately issuing circulars to all the concerned Police Station Officers they are informed and impressed upon that the offences under Section 65(e) and for that purpose any offences under the said Act by virtue of Section 119 having been declared to be non-bailable, no accused person alleged to have committed non-bailable offences are released on bail by them!
5. In view of the aforesaid discussion, since the petitioner has made out a clear case of non-application of mind, it is indeed not possible to sustain the impugned order of detention any further. It is hardly required to remind the authorities that the detention law is just like an open electric-circuit which if short-circuits and/or contacted accidentally – even, the same never permits of any mistake to spare anybody sometimes even from electrocution costing the precious life as well!! And accordingly, in that view of the matter, when the question involved is that of the detention of any citizen without trial and it is found out that there is either a breach of some procedural safeguards enshrined in the Act and/or the Constitution of India or non-application of mind, or any such point which ultimately vitiates the subjective satisfaction of the Detaining Authority, etc. etc. then in that case it is the duty of the Court to quash and set aside the detention order!! The point to be remembered is no detention orders should ever be passed mechanically as they are essentially required to be passed on the basis of the ‘subjective satisfaction, of the concerned Detaining Authority. They are required to be passed with full sense of accountability and awareness perusing word by word, line by line all the allegations levelled against the proposed detenu based on material documents in support of the same personally satisfying the Detaining Authority about the genuineness, gravity and seriousness of allegation on the basis of which the order of detention is ultimately passed, so that by mistake even nobody is sent behind the bars without trial without the necessary application of mind! The reason why indeed the Legislature in its wisdom became quite discreet and selective enough in vesting the power of the Preventive Detention, only in the Commissioners of Police and the District Magistrates and not in other subordinate officers is the fact that in the first instance, the preventive detention is an extra-ordinary measure investing, extra-ordinary powers whereby the precious liberty of the citizen can be snapped and put to an end for the stipulated period like the fall of lightening on any object and accordingly such unusually wide powers of sending any person behind the bars without trial are required to be sparingly, scrupulously and guardedly exercised with full sense of accountability, and accordingly, further bearing in mind this aspect, in the second instance, officers of the rank of IPS and IAS in metropolitan cities and districts considering them to be the most responsible, faithful, seasoned, sincere officers of the highest grit and integrity with their unstinted devotion to their duty, to the Constitution of India and thereby accordingly to the dignity and honour of the liberty of citizens would not do anything and for that purpose either abuse or mechanically exercise their powers curtailing the liberty of the citizen, unless of course, they are honestly, personally, subjectively fully satisfied regarding the immediate need and necessity to detain any such person suspected of likely to carry on his anti-social futuristic activities prejudicial to the maintenance of the public order whereby fully justifying the ultimate faith and trust of the legislature reposed in them!! It is this confidence and trust of the Legislature which warrants the District Magistrates and Commissioners of Police entrusted with the detention powers under Section 3(2) of the PASA Act, to personally and carefully go through the entire file word by word, line by line every allegation against the proposed detenu so as to have the necessary, real and the honest “subjective satisfaction,” before reaching the ultimate conclusion regarding the immediate need to detain any person to prevent him from carrying ahead his anti-social activities prejudicial to the maintenance of the public order in future. By virtue of Section 3(2) of the PASA, the Detaining Authority is invested with the conditional power to pass an order of detention and that the said condition precedent is his ‘subjective satisfaction’. Now what is this “subjective satisfaction”? What is the meaning of it? This expression “subjective satisfaction ” is constituted of two words!! “Subjective” and “Satisfaction”. Accordingly, first of all let us see what is the meaning of the word “subjective”? As per the Concise Oxford Dictionary, it is 1. a persons’ views proceeding from personal idiosyncracy or an individuality, not impartial. 2. Proceeding from or belonging to the individual consciousness or perception. Further, the word idiosyncracy used above means: 1. a mental constitution, view or feeling or mode of behaviour peculiar to a person. 2. Anything highly individualized. 3. Mode of expression peculiar to any author etc. etc. As per ‘The New Shorter Oxford English Dictionary’ the word ‘Subjective’ means: “1. Of pertaining to; 2. Of or pertaining to the real or inherent qualities of a thing or person; inherent; real, essential. 3. Of or pertaining to the thinking subject; proceeding from or taking place within the individual consciousness or perception, originating in the mind; belonging to the conscious life. 4. Of, pertaining to, or proceeding from an individual’s thoughts, views etc., derived from or expressing a person’s individuality or idiosyncrasy; not impartial or literal; personal, individual. 5. Of, a person etc. tending to lay stress on one’s own feelings or opinions, etc. etc. Similarly the second word ‘satisfaction’ from the word satisfy means, ‘to adequately meet, fulfil or comply with (conditions, obligations, etc….) convince’ answer the requirement. Further, as observed by their Lordships of Gauhati High Court in case of Lalit Rajkhowa v. State of Assam and Ors., reported in 1984 Cri. LJ 1869, “the term “subjective” means pertaining or relating to the subject, namely, the detaining authority. The term satisfaction relates to the “thinking” of the detaining authority. The term has a reference to the mental element of the subject, i.e., the desires or feelings of the detaining authority. In a wider sense the term “satisfaction” may include “pleasure”. However, in the context in which the term “satisfaction” has been used indicates that there must be a state of mind which has satisfied or contented occasioned by some facts, events or state of things.” Bearing in mind the above dictionary meaning of “subjective satisfaction” it means that ‘satisfying oneself. Accordingly, the subjective satisfaction means in the first instance, the personal satisfaction of the concerned detaining authority himself only and none else and as a necessary corollary thereof, in the second instance, therefore it cannot be tested or set aside on the objective test. This is the distinct and extra-ordinary characteristic of the detention power/order which once found to be validly exercised passed on the subjective satisfaction, then no Court, not even the High Court and for that purpose even the Apex Court can interfere with and unsettle the same exercising their powers as an appellate authority save and except where on some settled grounds judicial review is available!! In other words, this in substance simply means not to pass the order of detention mechanically on the basis of the grounds of detention prepared by the subordinate officers and placed before him for mere signature, as the Detaining Authority, without satisfying oneself regarding the need to detain a person immediately!! In order to bear the indisputable stamp of the subjective satisfaction, the grounds of detention may not be necessarily in hand-writing of the Detaining Authority, but nonetheless it has got to be on the basis of the material produced before him and perused and thereafter on the basis of the same on being subjectively satisfied regarding the same, the grounds of detention dictated by him to his subordinate officer. In this view of the matter, detention law and jurisprudence warrants that before passing the order of detention, the Detaining Authority has to himself subjectively get satisfied that there is material on the basis of which the detention order is required to be passed. In other words, the Detaining Authority is expected to pass an order of detention not on any rough and ready material furnished to him by his subordinate officer, including the grounds of detention and detention order by just signing the same without the real subjective satisfaction. If the officer passes an order merely on the basis of material furnished before him and he has to merely sign the same, then it cannot be said that the order is passed on the basis of subjective satisfaction. Taking into consideration the past experience in good number of cases, it appears that not all but atleast some of the Detaining Authorities are found to be labouring under some false misconception that when the power is invested in them, then to merely sign and not do anything further is enough to pass the order of detention!! This is wholly illegal since it is contrary to the subjective satisfaction. Many a times, the detention order fails because on account of the alleged ground of non-application of mind, etc. If the Detaining Authority himself passes the order by looking at word by word, line by line then in that case there is no possibility for him to ever commit the mistake which often occurs; like the one in the instant case. Thus, in substance the ‘subjective satisfaction’ so to say is the sine qua non or the indispensable basis or the foundation in absence of which no super-structure of the preventive detention of any person, even an inch of it, could ever be constructed and in case misadventured to so construct, it would never survive the close judicial scrutiny to be ultimately demolised!! In this view of the matter, concerned Detaining Authorities who are not well-versed as to how to exercise powers in passing the Detention Orders and simply think that the order of detention can be passed on the material furnished before him, by just signing it then this is wrong. Once again, at the cost of repetition, it may be stated that it is the ‘subjective satisfaction’ alone which is the core of the detention order and not the ready-made material which is furnished before the Detaining Authority for just signing the same!! Under the circumstances, in overall public interest the concerned Detaining Authorities are requested to be careful and circumspect enough in seeing to it that such an unfortunate mistake like the one in the instant case does not creep-in and for that purpose no such other mistakes take place misfiring and setting at naught the detention order costing and pulling in jeopardy the problem of social defence!! This simply means that he should be quite alive to entire material on the record and thereafter only on fully satisfying on the basis of which order of detention should be ultimately passed unless of course once a while under some acute pressure of work in some unavoidable haste for some inadvertent grammatical or typographical or any other bona fide reasonable human error he can file an appropriate affidavit explaining the same to the satisfaction of the Court to avoid being branded with the allegation of non-application of mind! Thus, the Detaining Authority should always see to it that not only grounds of detention and other relevant material on which the detention order is based are sent at the earliest best to the detenu, but even the copies of material documents sent to him are legible and legible enough to enable him to make effective representation, his precious right under Section 22(5) of the Constitution. If on the ground of any of the material document not legible or the order is found to be mechanically passed demonstrating non-application of mind any detention order is strucked down to that extent, it can be said that the Detaining Authority has not discharged his duty to the desired extent by taking desired care on his part, on the one hand of the liberty of the citizen and on the other hand the equally most important public interest involved, namely, the social defence and liberty of the rest of the people!!
6. In the result, this petition is allowed. The impugned order of detention is quashed and set aside. The petitioner is ordered to be set at liberty forthwith unless his presence in jail is required in connection with any other proceedings, pending against him. Rule made absolute.
7. The Registry is directed to forward a copy of this judgment to The Secretary, Home Department, Government of Gujarat, Gandhinagar requesting him to circulate copy of this judgment to all the Detaining Authorities constituted under various Acts.