PANKAJ ALIAS PRAKASH GANGARAM PANCHAL v. STATE OF GUJARAT

CORAM : MR.JUSTICE A.L.DAVE Date of decision: 26/04/2001 ORAL JUDGEMENT

1.(cid:9)Commissioner of Police, Ahmedabad City, Ahmedabad, passed an order on September 30, 2000, 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 of theft of Maruti Car registered against the petitioner, so also the statements of two anonymous witnesses in respect of incidents dated the 5th September and the 15th September, 2000. The detaining authority considered the activities of the detenu and observed that the petitioner is required to be immediately prevented from pursuing his activities, which are detrimental to public order. 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. Ms. Mishra, 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 has drawn attention of this Court to the fact that the statements of anonymous witnesses were recorded on the 28th September, 2000, they were verified on the 29th September, 2000 and on the 30th September, 2000, the order detention was passed. The authority, therefore, had no time to undertake the exercise of verifying the correctness and genuineness of the fear expressed by the witnesses qua the detenu. Ms. Mishra submitted further that the offences registered against the detenu do not indicate any disturbance to public order and, therefore, the subjective satisfaction recorded by the detaining authority regarding the activities of the detenu being detrimental to public order is without any basis and the petition may, therefore, be allowed.

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

5.(cid:9)Considering rival side contentions, it appears that the statements of anonymous witnesses have been recorded on the 28th September, 2000. The same have been verified by the detaining authority on the 29th September, 2000 and the order is passed on the 30th September, 2000. 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 and the statements and the statements are correct and genuine. Barring this statement in the grounds of detention, 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 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. Therefore, the exercise of powers under Section 9(2) of the PASA Act can be said 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), as there is no material to indicate the exercise as stated above (Bai Amina v. State of Gujarat & Ors., 1981 GLR 1186 and Kalidas Chandubhai Kahar v. State of Gujarat & Ors., 1993(2) GLR 1659).

6.(cid:9)Adverting to the offences registered against the detenu, a perusal of the First Information Reports and the other relevant documents supplied to the detenu makes it abundantly clear that they both are cases of theft of Maruti Car and 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 detenu being detrimental to public order is without any basis. Neither the statements nor the registered offences an be accepted to form the basis of this satisfaction.

7.(cid:9)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. The petition, therefore, deserves to be allowed.