RAJENDRASINH MANGALSINH MAHIDA v. STATE OF GUJARAT

Ms. Mita Panchal, AGP for Respondent No. 1-3 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 07/04/2004 ORAL JUDGEMENT (cid:9)The petitioner has filed this petition under under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside an order dated 11.11.2003 passed by respondent No.2 under section 3(2) of the Gujarat Prevention of Anti-social Activities At, 1985 (for short, 'the PASA Act') directing detention of the present petitioner on the grounds stated in the detention order.

2.(cid:9)It was alleged against the petitioner that two cases of prohibition under sections 65 and 66 of the Bombay Prohibition Act, 1949 were registered before North police station CR No. 841/03 and 1661/03 on 20.6.2003 and 7.11.2003 respectively. It was also alleged that two witnesses had given statements against the petitioner and, therefore, the petitioner was considered to be a bootlegger and hence he was ordered to be detained. The petitioner has challenged the detention order on the ground that the alleged activity could not be treated to be a threat to public order or public health. It has also been contended that the names of the unnamed witnesses who had rendered their statements have not been disclosed to the petitioner and, therefore, the petitioner could not effectively represent her case. That therefore, the order of detention is illegal and deserves to be quashed and set aside.

3.(cid:9)On receipt of the petition, rule was issued and in response to the notice of rule, Ms Mita Panchal, learned AGP appears on behalf of the respondents. I have heard the learned Advocates for the parties and have perused the papers.

4.(cid:9)On going through the grounds of detention, it is clear that except the said two prohibition offences, no other offence was registered against him. Now simply two offences were registered, it cannot be said that the petitioner's activity had led to a threat to public order or public health. (cid:9)

5.(cid:9)So far as the statements of unnamed witnesses are concerned, three witnesses have given statements against the petitioner. It is well settled that before considering the statements of the witnesses, the detaining authority is required to supply names of the said witnesses to the detenu. It is true that under section 9(2) of the Act, the detaining authority has power of privilege to withhold names of the witnesses. However, this Court (Coram: Hon'ble Mr Justice A L Dave) in Special Civil Application No.294/2000 passed on

19.4.2000 clearly laid down that before claiming privilege under section 9(2) of the Act, the detaining authority must have credible material before it in order to ascertain the reasonable fear or apprehension in the mind of the witnesses whose names have not been disclosed to the detenu. It has also been observed that if there is no credible material before the detaining authority, even non-disclosure of the names of the witnesses would violate principles of natural justice and consequently the petitioner's right of making representation under Article 22 (5) of the Constitution of India has been frustrated and hence the order of detention cannot be sustained in the eye of law.

6.(cid:9)For the foregoing reasons, this petition is allowed. The impugned order of detention dated

11.11.2003 passed by respondent No.2 is ordered to be quashed and set aside. The detenu is ordered to be set at liberty forthwith, if no longer required in any other case. Rule is made absolute to the aforesaid extent. No order as to costs. D.S. permitted. (cid:9) (cid:9)[D P Buch, J.] (cid:9) (cid:9)