SABIR MOHYUDDIN SHAIKH Vs. COMMISSIONER OF POLICE SURAT

JUDGEMENT

(1.) In this petition for a writ of habeas corpus the petitioner who is detained under the provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 (PASA for short) has challenged his preventive detention on diverse grounds. The order is dated 14-8-1989. It is passed by the Commissioner of Police Surat city ordering preventive contention of the detenu in exercise of his powers under Section 3(2) of the PASA. The grounds of detention of even date are supplied to the detenu alongwith the order of detention. These grounds indicated that the petitioner is a dangerous person as defined by Section 2 of the PASA and on account of his alleged involvement with the nefarious anti-social activities detailed in these grounds the detaining authority was subjectively satisfied that it was necessary to preventively detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area falling under jurisdiction Athwa Lines and Salabatpura police station Surat city.

(2.) This petition was tried to be supported on various grounds. However ultimately the learned Advocate for the petitioner highligthed one aspect which is mentioned in para xiv (d) of the petition. It is mentioned in the second half of that para that the petitioner is involved in non- bailable offences and he was released on bail with strict conditions one of which was that the petitioner should not involve in similar activities. The petitioner submits that the orders granting bail to the petitioner in offence at S. Nos. 1 to 5 are most material and vital documents which ought to have been placed before the detaining authority. This is the material in favour of the petitioner which would show that if the petitioner is found involved in similar activities his bail would be cancelled automatically and therefore there was no necessity to make an order of detention. So far as this ground is concerned the Commissioner of Police in his affidavit-in-reply has slated in second part of para 6 that the material supplied to the detenu clearly indicates the involvement of the petitioner in the offences registered against him. The date time and particulars about the offence and as the fact whether the petitioner was on bail or in custody are clearly mentioned in the arrest memo which is supplied to him. This material clearly indicates that the petitioner was released on bail. That it was very clear that after committing one offence on relasing on bail he had also committed another offence and in connection with that offence also he was released on bail. It is further averred that the petitioner was duly supplied with the arrest memo which shows that on that date the petitioner was arrested and whether he was in judicial custody or was released on bail. It is then averred that he has rightly exercised his power to pass the order of detention under the provisions of PASA. It becomes obvious that the petitioners averment on oath that in five listed criminal cases against him as referred to in the grounds of detention he was released on bail with strict conditions one of which being that he should not involve in similar activities has not been replied to at all. However at the time of final hearing of this petition Mr. Baxi learned P.P. for the respondents submitted that he has obtained certified copies of bail order in the last three criminal cases listed at Sl.Nos. 4 5 and 6 in the annexure to the grounds of detention and on perusal thereof it is found that in Salabatpura 1 and in Salabatpura 1-159/89 bail orders passed by the court did not impose any conditions while in criminal case listed at Sl. No.6 being Salatpura I-193/89 conditions have been imposed about reporting once a week to the concerned police station and not to tamper with witnesses but there is no condition imposed by the court that the detenu should not commit similar offence. It was therefore submitted that the averment made in ground xiv (d) that in these five cases such conditions are imposed in the conditions of bail is not correct. However Mr. Baxi fairly staled that so far as first three listed criminal cases are concerned there is no material available with the sponsoring authority to find out whether such conditions were imposed or not. We have there- fore to decide this contention in view of the aforesaid fact situation and the rival stands taken by both the sides.

(3.) Mr. Kapadia for the petitioner in this connection stongly relied upon a decision of the Supreme Court in the case of M. Ahmaedkutty v. Union of India and Another 1990 S.C.C. 1 wherein it is hold that when the detenu was not supplied with a copy of the bail application and the order of the court below it facts before the Supreme Court there was only a single ground showing involvement of the detenu in connection with smuggling of 13 gold biscuits weighing 1280 gms which were concealed inside the plywood panels of the blue suitcase of the detenu which was seized alongwith his two passports old and new when he landed at Trivendrum airport from Abu Dhabi. In connection with his single involvement mentioned in the grounds detention order was passed. While examining the legality of the said detention order the Supreme Court found that in connection with the said incident when the detenu was produced before the Chief JMFC Eranakulam he was remanded to judicial custody till 12-2-1988 when he was granted bail on condition that he would report before the Superintendent (Intelligence) Air Customs Trivendrum on every Wednesday until further orders. This material was called for by the detraining authority from the sponsoring authority and was perused before the detention order was passed. This material was not supplied to the detenu. Therefore Article 22 (5) of the Constitution was held to have been infracted. Now this is not the position here. It is not the case of the petitioner that the detaining authority had considered the orders of bail alongwith conditions or bail applications. It is his contention that these were the vital materials which were not considered by the detaining authority as they were not supplied by the sponsoring authority and there- fore the subjective satisfaction underlying the order of detention will fail as observed by the Supreme Court in paras 24 25 and 27 of the report. So far as bail applications were concerned the learned P. P. submitted that they were not placed before the detaining authority by the sponsoring authority. But he submitted that even while moving bail applications it was urged by the detenu that he was innocent and was wrongly involved in the cases filed against him this non- placing of bail applications would at the highest invalid the grounds alleging the detenus involvement in these cases. But there is other material on which detention order can be sustained as permitted by Section 6 of PASA. It was further submitted by the learned P. P. that in Ahmadkuttys case there was only solitary ground for detaining the detenu for his involvement in the smuggling activities and Section 5A of the COFEPOSA which is pari materia with Section 6 of PASA was not considered by the Supreme Court as it could not have been pressed in service by the detaining authority before the Supreme Court. Therefore the said decision is not an authority for the proposition that despite applicability of Section 5A of the COFEPOSA or pari materia provision of Section 6 of PASA if there is other material before the detaining authority the order of detention cannot be sustained under such provision even though grounds regarding involvement of the detenu in some of the cases may become invalid on account of non-consideration of bail applications of the detenu. We find considerable force in the submission of the learned P.P. As noted earlier in Ahmadkuttys case the Supreme Court was concerned with the solitary ground of involvement of the detenu in the smuggling activities. There was no other ground regarding his involvement in any other matter. Therefore there was no scope for relying upon the provisions of Section 5A of COFEPOSA before the Supreme Court in Ahmadkuttys case (supra) and that precisely seems to be the reason why such argument was not raised nor was it considered. Consequently on the facts of the present case even if bail applications of the detenu in these six listed cases were not placed by the sponsoring authority before the detaining authority at the highest his alleged involvement in these cases as shown in these grounds might be rendered invalid for this reason. But as Section 6 of PASA applies to the facts of the present case it would be open to the respondents to show that there is other material dehors the aforesaid involvement in six cases which would support the order of detention as per Section 6 of the PASA. That exercise can be undertaken by the court on the facts of the present case and ratio of Ahmadkuttys case would not apply to forestall such exercise.