SAVITRIBEN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) We have heard in extenso the arguments advanced before us by learned counsel for detenu as well as for the State of Gujarat. We are satisfied that this is a case where it appears prima facie from a reading of the order of detention that it was prepared in the month of October, 1988 and it was left unsigned by the then detaining authority. This position is also admitted by Mr. T. U. Mehta, learned counsel for the State. It further appears on close scrutiny of the order of detention that the date has been smudged. Something was typed there and instead of that date 18-10/11/1988 was written. As we have already said that previously the date was blank. It further appears on further scrutiny that the date 18 was put in subsequently in place of word "0" and also in respect of month it appears that the number 10 was typed and subsequently number I was written over '0 i. e. it was made November and in respect of year another number '8 was put in the end and it further appears that in the sentence reading : "i have passed the said order" and then something was written and then there is over-writing and it was not signed. The numbers 18/11/1988 was typed. 18 was put in ink and stroke Hand stroke 1988 was typed. Then in place of signature of the District Magistrate, there was something which was over written and cannot be deciphered, and then it was typed M. G. Mehta and over it his signature appears.

(2.) Mr. T. U. Mehta, learned counsel for the State tried to submit before us that though the order of detention was prepared earlier when the regular District Magistrate, Mr. H. K. Das was Incharge but since some enquiry was pending and it was not complete, the District Magistrate Mr. Das did not sign the said draft of the detention order already prepared. When we enquired from Mr. Mehta, learned counsel for the State, as to what further enquiry was pending for which the detention order which was already prepared was not signed by the regular District Magistrate and what were the materials collected subsequently, Mr. Mehta could not satisfy us that any further material besides what were on the record were collected. In these circumstances, it clearly appears that the detention order was prepared prior to Mr. Mehtas taking charge as officiating District Magistrate sometime on 11/11/1988 and as such there was no occasion for him to apply his mind to the relevant materials for forming his subjective satisfaction that an order of detention is necessary to be passed for detaining the petitioner in order to prevent him from indulging in bootlegging activities which will go to create serious disturbances in maintaining public order. It is well settled that Art. 21 of the Constitution read with Art-22 confersfundamental right on every person to live with human dignity and a detention order which deprives a person of personal liberty has to be made after following the procedure prescribed by law i. e. the Gujarat Prevention Anti Social Activities Act, 1985. Therefore, it is one of the fundamental and basic requirements of law and also a mandate of the Constitution that the petitioner before he is being detained by an order of detention, the detaining authority must consider all the relevant materials and after due consideration of those materials must form his subjective satisfaction that an order of detention is necessary to be made in order to prevent him from indulging in the activities which will hamper the maintenance of public order. It also further enjoins that the determing authority must serve the order of detention to the detenu and he will have to be given copy of the grounds on which the order has been made and also the materials including documents which were relied upon and considered by the detaining authority in coming to his satisfaction before making the order. This is also envisaged in Art. 22 of the Constitution of India.

(3.) As we have stated hereinbefore that in the instant case the mandatory requirements have not at all been complied with. On the other hand, the detention order which was prepared in October, 1988 when the then detaining authority i. e. the District Magistrate Mr. H. K. Das was not satisfied with the materials placed before him and did not sign the order of detention. The same draft detention order prepared before Mr. Mehtas taking charge of office of District Magistrate sometime on 11/11/1988 was placed before him and the same got signed by the new incumbent. No fresh materials were placed by sponsoring authority before the detaining authority.