JENTIBHAI RAMJIBHAI SUTHAR v. POLICE COMMISSIONER

CORAM : MR.JUSTICE A.M.KAPADIA Date of decision: 30/10/2001 ORAL JUDGEMENT (cid:9)In exercise of powers under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 ('the Act' for short), Commissioner of Police, Rajkot City, Rajkot, vide order dated April 22, 2001 (Annexure-A to the petition) detained the petitioner/detenu.

2.(cid:9)The averments made in the petition and the grounds of detention manifest that the detaining authority has considered the petitioner as a dangerous person within the meaning of Section 2(c) of the Act as six cases for commission of the offences under Sections 379 and 114 of the IPC are registered against the petitioner which are pending investigation/trial and the statements of two anonymous witnesses in an unregistered cases are recorded and therefore, according to the detaining authority his activities are prejudicial to the maintenance of public order and therefore, power under Section 9(2) of the Act is exercised by the detaining authority by not disclosing the identity of those witnesses.

3.(cid:9)By filing this petition under Article 226 of the Constitution, petitioner has assailed the impugned order of detention on various grounds and prayed to issue a writ of habeas corpus or any other appropriate writ, order or direction quashing the impugned order of detention and setting him at liberty forthwith.

4.(cid:9)Though the petitioner has challenged the order of detention on various grounds, Mr. D.J.Chauhan, learned advocate for the petitioner has restricted his arguments to the effect that subjective satisfaction recorded by the detaining authority cannot be considered as genuine as there was no enough material necessitating the detention of a person in custody. The detaining authority has observed in its order that petitioner would indulge in the same activity after being released on bail and therefore, it has become necessary to detain him. The said observation of the detaining authority is on the surmises and assumption without any concrete proof. On this sole ground, the order of detention deserves to be quashed and set aside.

5.(cid:9)Mr K.T.Dave, learned AGP has appeared on behalf of the respondents and has opposed the petition by making oral submissions. He, however, does not dispute the fact with regard to the observation made by the detaining authority that the petitioner would again indulge in similar activities after being released on bail. He, therefore, urged to pass appropriate order in light of the principles enunciated by the Supreme Court as well as this Court in this regard.

6.(cid:9)I have considered the submissions advanced by the learned advocates appearing for the parties. I have also perused the averments made in the petition as well as the documents annexed therewith and the impugned order.

7.(cid:9)A similar question arose before the Supreme Court in the case of ABDUL SATHAR IBRAHIM MANIK VS. UNION OF INDIA - 1991 (SC) 2261 in which it has been held that there must be enough material necessitating the detention of a person in custody. If there is possibility of his being released on bail and on being so released, he is likely to indulge in prejudicial activities, then there must be compelling reason to pass detention order.

8.(cid:9)A similar view is also expressed by the Supreme Court in the case of AMRITLAL VS. UNION GOVERNMENT - 2000 AIR SCW 4203. In the said case it has been observed that there must be cogent material before the officer passing the detention order that the detenu is likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. Likelihood of detenu's moving an application for bail is not a cogent material and detention order based on such material is liable to be quashed. The reasoning that there is "likelihood to be released on bail" is different from "likelihood of his moving an application for bail".

9.(cid:9)Applying the aforesaid principles laid down by the Supreme Court to the facts of the present case, in the instant case also the detaining authority has considered only the aspect of petitioner being released on bail and thereafter to indulge in similar activity, but on what basis the detaining authority has come to the conclusion that the petitioner would continue to indulging in similar activities is not mentioned in the order of detention. Therefore, order of detention stand vitiated and the petition deserves to be allowed on this ground alone.

10.(cid:9)For the foregoing reasons, the petition succeeds and accordingly it is allowed. The impugned order of detention dated April 22, 2001 is hereby quashed and set aside. The petitioner/detenu is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute. No order as to costs. Direct service is permitted. (cid:9) (cid:9)(A.M.Kapadia, J) Jayanti* (cid:9) (cid:9)