GAFAR MOHAMMED HUSEIN MIYANA v. COMMISSIONER OF POLICE

CORAM : MR.JUSTICE A.L.DAVE Date of decision: 24/04/2000 ORAL JUDGEMENT #. The petitioner - Gafar Mohammed Husen Miyana has been detained under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA Act" for short) by virtue of an order passed by Commissioner of Police, Ahmedabad City, Ahmedabad, in exercise of powers under Section 3(1) of the PASA Act, dated December 1,

1999. #. The grounds of detention indicate that the detaining authority took into consideration three offences registered against the petitioner. The detaining authority also took into consideration the statements of two anonymous witnesses in respect of two incidents that occurred on November 5, 1999 and November 14, 1999 and came to conclusion that the petitioner is a "dangerous person" that his activities are detrimental to public order, that fear expressed by the witnesses qua the petitioner was genuine and therefore, powers under section 9(2) of the PASA Act were exercised by the detaining authority by not disclosing identity of these witnesses. #. The petitioner has challenged this order of detention on various counts. However, learned advocate for the petitioner has restricted his arguments to the fact that the subjective satisfaction recorded by the detaining authority for the need for exercise of powers under Section 9(2) of the PASA Act, cannot be considered as genuine.

In order to substantiate this submission, learned counsel submitted that the statements of two anonymous witnesses were recorded on November 27, 1999 and November 29, 1999 which were verified by the detaining authority on December 1, 1999 and the order of detention is passed on December 1, 1999. Learned counsel submitted, therefore, that there was no time for the detaining authority to give consideration to the aspect of correctness and genuineness of the facts stated by the witnesses and the fear expressed by the witnesses, respectively, in their statements. The exercise of powers under Section 9(2) of the PASA Act is improper and has resulted into denial of right of making an effective representation as contemplated under Article 22 (5) of the Constitution. Learned counsel for the petitioner therefore, submitted that, in light of the decision of a Division Bench of this Court in the case of Kalidas Chandubhai Kahar v.

State of Gujarat & Ors. 1993 (2) GLR 1659, this petition may be allowed. It is also submitted that none of the registered offences indicate any disturbance to public order. They only relate to individual incidents involving law and order situation. The satisfaction of detaining authority on the activities of detenue being detrimental to public order is therefore not genuine and cannot support the order of detention. #. Mr. K.T. Dave, learned AGP has opposed this petition. #. 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 in the statements are correct and genuine. Barring these statements, 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 detenue 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 detenue 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) of the PASA Act, as there is no material to indicate the exercise as stated above (BAI AMINA v.

State of Gujarat & others, 1981 GLR 1186 and Kalidas Chandubhai Kahar v. State of Gujarat & ors., 1993 (2) GLR 1659). #. So far as the registered offences are concerned, they are relating to theft cases are individual in nature. Perusal of the First Information Report and the other relevant documents supplied to the detenue makes it abundantly clear that there was no disturbance to public order. All that was involved was a law and order situation. Resultantly, the satisfaction arrived at by the detaining authority about the activities of the detenue being detrimental to public order is without any basis. Neither the statements nor the registered offences can be accepted to form the basis of this satisfaction. #. In view of the above discussion, the reliance placed on by the detaining authority on the statements of anonymous witnesses and the registered offences cannot be upheld. The order of detention as well as the continued detention both are rendered bad in law.