ATULKUMAR PRAFULBHAI PATEL v. STATE OF GUJARAT

Mr. AD Oza, GOVERNMENT PLEADER for Respondent No.1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE A.L.DAVE Date of decision: 04/12/2003 ORAL JUDGEMENT

1.(cid:9)Commissioner of Police, Surat City, Surat, passed an order on 3rd September, 2003 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 three theft cases registered mainly under Section 379 of I.P.C. against the petitioner, so also the statements of two anonymous witnesses dated 19th August 2003. The statements were verified on 1st September 2003. The detaining authority considered the activities of the detenu as that of a dangerous person as defined under the PASA Act 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. Learned advocate appearing for the petitioner, has restricted his arguments to the ground that there is improper exercise of powers under Section 9(2) of the PASA Act. He submitted that the authority has not undertaken the exercise of verifying the correctness and genuineness of the fear expressed by the witnesses qua the detenu. He submitted further that the grounds of detention do not indicate any satisfaction recorded by the detaining authority to indicate that the activities of the detenu are detrimental to public health and, therefore, there is improper exercise of powers under Section 3 of the PASA Act. He further submitted that, so far as the offences are concerned, they relate to theft cases and there is no 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)Considering the rival side contentions, 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. 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), as there is no material to indicate the exercise as stated above (Kajalben G. Sindhi v. Commissioner of Police, 2000(1) GLH 320 and Kishore Naginbhai Parmar v. State of Gujarat & Ors., 2000(4) GLR 3236 ).

6.(cid:9)The satisfasction regarding disturbance to public order also does not seem to be well founded. The registered cases are all theft cases and they do not indicate anything to support disturbance to public order. The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law on aspect of disturbance to public order as distinct from law and order. The petition, therefore, deserves to be allowed.