NAVGHANBHAI MOTIBHAI BHARWAD v. STATE OF GUJARAT

CORAM : ACTING CHIEF JUSTICE MR.JN BHATT Date of decision: 12/05/2003 ORAL JUDGEMENT

1.(cid:9)Age old contest between liberty and detention has once again surfaced in this petition at the instance of the petitioner-detenu by invocation of the provisions of Article 226 of the Constitution of India.

2.(cid:9)Liberty is a basic and dynamic jurisprudential concept and philosophy, and therefore, it has constitutional and statutory safeguards for the preservation, projection and protection of the liberty of an individual. Since it is a dynamic aspect and concept, continued research is necessary to regularly assess the changing dimension and dynamics of such a constitutional right, personal right of liberty guaranteed under the Constitution, the highest law of the land.

3.(cid:9)Preventive detention has long standing and deep rooted base in this country. The preventive detention is a serious in-road and encroachment on the liberty of a person. All human beings are born with free and equal rights. All human beings are, no doubt, gifted by their creator with certain unalienable, non-transferable, non-negotiable natural rights. Justice, liberty and equality have been pursuits of human kind and are sine qua non for organized civilised society. Preservation of human life is the most important right for an individual. The personal liberty has been claimed, and, as such, has been acclaimed as a part of the right to life and for the development and protection of this concept, Courts have taken utmost care to protect various aspects of personal liberty as part of protection of life. Article 21 provides for everyone, right to life, liberty and security of person. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 22(5) also provides requisite and sufficient safeguards while encroaching upon the right to personal liberty of an individual. Under various detention laws, the competent authorities are empowered to pass order of detention provided material and important constitutional and statutory safeguards are observed and subjective satisfaction has been reached on an objective assessment of the sufficient material. With this prefatory profile of the preventive detention law, it would be interesting and imperative to assess, evaluate and adjudicate upon the challenge against the detention order in this petition on the basis of the material emerging from the record.

4.(cid:9)Factual Projection: Challenge in this Special Civil Application is to the order of detention dated 27.9.2002 passed under the provisions of section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (Act for short) by the District Magistrae, Kheda at Nadiad on the ground that the petitioner is a "dangerous person" and his activities are prejudicial to the maintenance of public order and that criminal cases are pending against him.

5.(cid:9)The facts emerging from the record of the case show that against the petitioner-detenu an offence came to be registered with Nadiad Town Police Station on

8.7.2002. The order of detention came to be recorded on

27.9.2002. Thus, there is delay of more than two months in passing the detention order. It is very well propounded and expounded by the Hon'ble Apex Court in the case of Pradeep N. Paturkar v. S. Ramamurthi, AIR 1994 SC 656 that considering the unexplained delay whether short or long, especially when the detenu has taken a specific defence or plea of delay, the order of detention has to be quashed. No doubt, it is true that delay, ipso facto, in passing the order of detention after an incident or incidents would not be fatal to the detention of a person, for, in certain cases it may be unavoidable or reasonable. What is required by law is that the delay has to be satisfactorily accounted for or explained by the detaining authority so as to obliterate the snapping of link between the prejudicial activities and the purpose of detention. In the facts of the present case, the delay has not been explained much less satisfactorily. The detention order, therefore, deserves to be quashed and set aside.