RABARI DEVABHAI VASTABHAI Vs. DISTRICT REGISTRAR JUNAGADH

JUDGEMENT

(1.) The pivotal questions raised in this Habeas corpus petition under Article 226 of the Constitution of India for our consideration are Whether mere non-consideration of the bail application bail orders by the Detaining Authority impairs and vititates its subjective satisfaction as much as that the same renders the detention order ab initio void and illegal ? and in case if the same is taken into consideration Whether mere non-supply of the said material to the detenu violates his invariable constitutional right of making effective representation rendering the detention order unconstitutional entitling him to be set at liberty forthwith ?

(2.) To state few relevant facts briefly so far as they are necessary for deciding the points raised in this petition it has been alleged in the grounds of detention that the petitioner was a dangerous person within the meaning of Section 2 of the Gujarat Prevention of Anti-Social Activities Act 1986 (for short PASA) and that by the alleged anti-social activities falling within the perview of Chapters XVI & XVII of the I. P. Code had disturbed the public order in Junagadh area. It has also been further alleged that two offences as stated hereunder have been registered against the petitioner: @@@ -------------------------------------------Sr. C.R.No.& Offence Date of Date of No. the name under release Decision of Police Sections on bail -Date -------------------------------------------1 -42 302 317 17 Not -Bagbadar 147 148 proved. Police Stn. 149 395 -Dt 11 IPC...& 135 B.P.Act 2 -Kalyanpur 25(1)Arms Released Pending (Jamnagar Act and on bail trial. District) 135(1) but date -No.4/88 B.P.Act. is not -Dt.16-1-77 known. ------------------------------------------- Over and above the aforesaid two offences 19 resepectable citizens appears to have given their statements before the Police complaining about petitioners dangerous activities disturbing public order in the area with a request to keep their names secret as they were apprehensive of danger to their lives and properties from the petitioner. As stated in the grounds of detention these statements were duly certified to have been verified by the DSP Porbandar. Further out of the said 19 witnesses 13 witnesses were also personally examined and inquired from by the Dist. Magistrate (for short-Detaining Authority) himself who was satisfied for withhelding the names and addresses of the said witnesses in the public interest. The Detaining Authority ultimately on the basis of the above material (as set out in details in the grounds of detention and annexures thereto) placed before him was satisfied that the petitioner was a dangerous person and had disturbed public order on number of occasions in Junagadh area and therefore with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the said area it was necessary to detain him. Accordingly in exercise of the powers conferred by sub-sec(1) of Section 3 of the PASA the Detaining Authority on 10-8-1990 clamped down the detention order on the petitioner putting him under detention. This detention order thereafter came to be approved & confirmed by the State Govt. in due compliance with rest of the provisions of the PASA. It is under these circumstances that the present petition under Article 226 of the Constitution of India has been filed challenging the legality & validity of the orders of Detention before us.

(3.) Miss Kachhavah the learned Advocate appearing for the petitioner though has raised several contentions in the petition she has mainly chosen to attack the order of detention by placing in fore-front only two of them as raised in paras 12 and 13 of the petition which are to the effect that (I) while passing the detention order as the Detaining Authority has not considered the vittal material pertaining to the bail applications and bail orders passed thereunder the genuineness of its subjective satisfaction to the said extent stood impaired and vitiated and (ii) nonsupply of the aforesaid vital material to the detenu has seriously prejudiced detenus right to make effective representation under Article 22(5) of the Constitution of India. Elaborating the above two points it was vehemently argued by Miss Kachhavah that though as alleged in the grounds of detention the petitioner who was involved in serious offences under Section 25(1)(a) of the Arms Act Section 35(1) of the Bombay Police Act and Section 5 of the TADA regarding which C. R. No. 4 of 1988 came to be registered at Kalyanpur Police Station was released on bail by the competent Court yet neither the copy of the said bail application nor any bail order thereunder has been placed before the Detaining Authority by the Sponsoring Authority. Miss Kachhavah further submitted that in the said application it has been specifically submitted that the petitioner was innocent & falsely implicated. She further submitted that the bail application and bail orders in question were vital documents having a bearing on passing of the detention order and therefore the same ought to have been placed by the Sponsoring Authority before the Detaining Authority alongwith other materials to enable it to consider properly whether the proposed order of detention was required to be passed against the petitioner or not. According to Miss Kachhavah had the said material been placed before the Detaining Authority it could as well might have tilted the subjective satisfaction in favour of the petitioner. Miss Kachhavah submitted that such a vital and important material having a bearing on detention order to utter prejudice of the petitioner has been unfortunately kept out of the consideration of the Detaining Authority and therefore to the said extent the genuineness of its subjective satisfaction stands impaired and vitiated. This infirmity according to Miss Kachhavah was fatal to the detention order rendering it liable to be quashed and set aside. Miss Kachhavah further submitted that the petitioner was not supplied with the copy of the said bail application and order passed thereunder as a result of which he could not make effective representation before the appropriate authorities which in turn violated his valuable fundamental right under Article 22(5) of the Constitution of India rendering the deten tion order unconstitutional illegal and void. In support of her above contention Miss Kachhavah has strongly relied upon the decision in the case of M. Ahamed Kutty v. Union of India reported in (1990) 2 SCC P. 1 wherein at Para 19 it has been held as under: