IQBAL AHMED PATEL v. STATE OF GUJARAT

CORAM : MR.JUSTICE A.L.DAVE Date of decision: 04/02/2002 ORAL JUDGEMENT (cid:9)The petitioner came to be detained by virtue of an order dated 5.10.2001 passed by the District Magistrate, Panchmahal, Godhra in exercise of power under Section 3 of the PASA Act. The petitioner seeks to challenge the said order by this petition under Article 226 of the of Constitution of India.

2.(cid:9)The grounds of detention indicate that the petitioner has been branded as a dangerous person. The detaining authority has considered three registered offences against the detenu. The detaining authority has also considered statements of four anonymous witnesses and recorded a satisfaction that powers under Section 9(2) of the Act are required to be exercised in larger public interest. The offences relate to theft cases. However, the detaining authority recorded a satisfaction that the petitioner is required to be immediately prevented from pursuing his illegal and anti-social activities and resorting to less drastic remedy under ordinary law is not possible as immediate prevention is necessary and therefore, passed the order in exercise of powers under Section 3 of the PASA Act.

3.(cid:9)Learned Counsel for the petitioner Mr. Tirmizi mainly contended that there is improper exercise of power under Section 9(2) of the PASA Act. The statements have not been verified by the detaining authority, but the same have been verified by the Sub Divisional Magistrate and there is no communication between them in this regard. He submitted that there is nothing to indicate that there was disturbance to public order when the registered offences were committed.

3.1(cid:9)So far as statements are concerned, he submitted that there is no material to indicate that the power was properly exercised by the detaining authority under Section 9(2) of the PASA Act after undertaking due enquiry and verification regarding genuineness of the fear expressed by the witnesses and the need for use of power under Section 9(2) of the PASA Act, in comparison to the right of the detenu envisaged under Art. 22 of the Constitution of India. He has placed reliance on the decision of this Court in Bai Amina Vs. State of Gujarat, reported in 22 GLR 1186 and subsequent judgements wherein the said decision has been followed.

4.(cid:9)Learned AGP Mr. S.S.Patel has opposed to this petition.

5.(cid:9)Having regard to the contentions raised, at the out-set it would be noted that there is no material to indicate that the detaining authority has undertaken proper exercise of verification of the fear expressed by the anonymous witnesses qua the detenu and its genuineness. There is nothing to indicate that any exercise except calling the witnesses was undertaken by the authority. As observed by this Court in Bai Amina w/o Ibrahim Abdul Rahim Alla Vs. State of Gujarat, reported in 1981 GLR 1186, the authority is expected to consider the general background, character, antecedents, criminal tendency or propensity, etc. of the detenu and such of those matters as are relevant in the context of the informant must be enquired into and carefully examined by the detaining authority with a view to satisfying itself that the alleged apprehension is not imaginary or fanciful or that it is not merely an empty excuse invented by the informant, inter alie, to protect himself against the falsity of his version being exposed by an effective explanation of the detenu or to hide his own involvement or to conceal his enmity with the detenu. In this regard, decisions in the case of Kajalben G. Sindhi Vs. Commissioner of Police, Ahmedabad, reported in 2000 (2) GLR 1296 and Israil @ Israr Pahelvan Nazirahmed Shaikh Vs. State of Gujarat - 2001 (1) GLR 306 can be profitably be employed.

5.1(cid:9)In order to meet with this requirement, the detaining authority would be required to undertake a further exercise in addition to examining the anonymous witnesses. There is nothing to indicate that such an exercise is undertaken. A witness who has stated something before the sponsoring authority is bound to stick to his version before the detaining authority when he is summoned for verification, but what is stated by him is correct and genuine or not can be tested only after his version is cross-checked through other sources by undertaking further exercise. That having not been done, the subjective satisfaction cannot be said to have been recorded on the basis of any material and therefore, there is improper exercise of power under Section 9(2) of the PASA Act.

5.2(cid:9)The satisfaction of the authority about continuation of illegal activity by the detenu therefore cannot be considered as genuine particularly when the statements cannot be relied upon for the reasons discussed above. 5A.(cid:9)The registered offences are relating to theft cases. There is no material to indicate any disturbance to public order. The power is exercised in absence of any material and satisfaction for need for the order is not genuine.

6.(cid:9)For the reasons stated hereinabove, the petition deserves to be allowed and the same is allowed. Order of detention dated 5.10.2001 passed by the District Magistrate, Panchmahal is quashed and set aside. Detenu Iqbal Ahmed Patel be released from detention forthwith, if not required in any other case. Rule made absolute. No costs. Direct service permitted. (cid:9) (cid:9)(A.L.Dave,J.) */Mohandas (cid:9) (cid:9)