NARESHBHAI NATHALAL MINEKAR (CHHARA) v. COMMISSIONER OF POLICE

CORAM : MR.JUSTICE A.L.DAVE Date of decision: 23/01/2002 ORAL JUDGEMENT

1.(cid:9)Commissioner of Police, Ahmedabad City, Ahmedabad, passed an order on the 22nd August, 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.(cid:9)The detaining authority took into consideration two offences registered against the petitioner, so also the statements of two anonymous witnesses recorded on the 18th August, 2001 and verified on the 20th August, 2001. The detaining authority considered the activities of the detenu as that of a bootlegger and observed that the petitioner is required to be immediately prevented from pursuing his activities, which are detrimental to public order. The detaining authority exercised powers under Section 9(2) of the PASA Act after recording a satisfaction that the fear expressed by the witnesses qua the detenu is genuine. 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.(cid:9)The petitioner challenges the order of detention on various grounds. Mr. Shukla, learned advocate appearing for the petitioner, has restricted her arguments to the ground that there is improper exercise of powers under Section 9(2) of the PASA Act. She submitted that there is total lack of material to indicate that the detaining authority had undertaken the exercise of verifying the genuineness of the fear expressed by the witnesses and the need for maintaining anonymity regarding identity of the witnesses. He submitted that, in light of the decision rendered by a Division Bench of this Court in Kajalben G. Sindhi v. Commissioner of Police, 2000(2) GLR 1296, mere statement by the detaining authority in the affidavit-in-reply that he was subjective satisfied will not be sufficient. There has to be contemporaneous material to indicate the exercise undertaken by the detaining authority.

3.(cid:9)So far as the registered offences are concerned, Mr. Shukla submitted that they are all offences of theft and there is nothing to indicate any disturbance to public order. He submitted that the petition may, therefore, be allowed.

4.(cid:9)Mr. Patel, learned Assistant Government Pleader, has opposed this petition.

5.(cid:9)Having regard to rival side contentions, it has to be stated, at the outset, that there is no material to indicate that the detaining authority had except interrogating the anonymous witness, undertaken any exercise to satisfy himself about the correctness and genuineness of 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. There is no 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. The detaining authority has to carefully examine that the alleged apprehension is not imaginary or fanciful or that it is not merely an empty excuse invented by the informant. 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.

5.1(cid:9)In this regard, decision in the case of Bai Amina v. State of Gujarat & Ors., 1981 GLR 1186 which later on came to be confirmed by a Full Bench of this Court in Chandrakant N. Patel v. State of Gujarat 1994(1) GLR 761 and Kajalben G. Sindhi v. Commissioner of Police 2000(2) GLR 1296 may be employed in service wherein the above principles have been laid down. Mere say in the affidavit-in-reply filed by the detaining authority that it was subjectively satisfied about the need will not suffice. There has to be contemporaneous record with regard to formation of such opinion or satisfaction regarding withholding of names and material particulars by the detaining authority. In the instant case, nothing is stated in the grounds of detention. There is no affidavit filed by the detaining authority. The satisfaction recorded by the authority in exercise of powers under Section 9(2) of the PASA Act would, therefore, result into infringement of right of the detenu envisaged under Article 22(5) of the Constitution of India, which would vitiate the detention.

5.2(cid:9)So far as the registered offences are concerned, they relate to offences of theft and there isl nothing to indicate any disturbance to public order. At the most, they can be considered as a law and order problem and not a disturbance to public order. The petition, therefore, deserves to be allowed.