KISHOR AMBALAL JAISWAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Ramu @ Rabbar Ambalal Jaiswal on his coming to be detained as a Bootlegger u/s. 3(2) of the Gujarat Prevention of Anti-Social Activities Act 1985 pursuant to the order of detention dated 15th June 1992 made by the Commissioner of Police Baroda his brother Kishor Ambalal Jaiswal xx xxx xxx Ambalal Jaiswal has filed this Habeas-corpus petition under Article 226 of the Constitution of India challenging the same inter alia praying for quashing and setting aside the said order of detention and releasing the detenu and setting him at liberty forthwith.

(2.) Mr. S.H. Sanjanwala the learned advocate for the petitioner while challenging the legality and validity of the impugned order of detention on several grounds has ultimately pressed into service the only ground viz. that of the non-application of mind by the Detaining Authority which according to him vitiates the very subjective satisfaction of the said Authority rendering the impugned order of detention illegal and unconstitutional. Making good this submission Mr. Sanjanwala first of all invited our attention to the relevant paragraph under the attack appearing in the grounds of detention available at page-21 of the petition which reads as under: *** Mr. Sanjanwala thereafter further submitted that on reading the copies of two judgments of acquittal supplied to the detenu in the context of the above quoted para more particularly last six lines of it there is indeed absolutely nothing whatsoever by way of any specific observation made against the prosecution witnesses on the basis of which the above quoted statement had any remote chance or occasion to be reflected or surfaced. Mr. Sanjanwala further submitted that is nothing in the said two judgments to indicate that the detenu came to be equaled because the prosecution witnesses were administered threats and consequently as they were afraid of the detenu they did not support the prosecution. Mr. Sanjanwala thereafter invited our attention to Sessions Case No. 212/89 wherein the detenu (accused no. 3) who alongwith other 12 accused came to be tried by the learned Sessions Judge Baroda for the alleged offences punishable under sections 120-B 304 328 210 of IPC read with sections 66(1)(b) 67 67 81 and 83 of the Bombay Prohibition Act 1951 was ultimately acquitted by the judgment and order dated 26th August 1991 From this judgment it was further pointed out by Mr. Sanjanwala that in the said case the specific allegation against the detenu was that he alongwith another accused viz. Hotchand Chelaram (accused no. 5) after obtaining methyl alchol from one Manubhai Shanabhai (accused no. 6) and four others was transporting the same in his Ambassador ear bearing No. GBW-6674 from Nadiad to Baroda and was selling it in retail to one Kishor Ambalal Jaiswal (accused no. 4) Ambalal Jaiswal (accused no. 6) etc. It was further pointed out that in support of this allegation the prosecution has examined two witnesses viz. Ravjibhai Shanabhai (PW -1 Ex-10) and Mukesh Pathak (PW-22 -Ex-106). Inviting our further attention to the relevant para-8 of the said judgment it was pointed out to us that Ravjibhai Shanabhai and Mukesh Pathak had not supported the prosecution and that learned Judge has observed in the judgment that their evidence was not helpful to the prosecution. It was further pointed out that the Investigating Officer - Vaghela who recorded the statement of the two witnesses had already expired. Mr. Sanjanwala thereafter invited our attention to another judgment in Sessions Case No. 214/89 wherein the present detenu (accused no. 3) came to be tried alongwith other 16 accused persons for the alleged offences punishable under sections 120-B 304 328 and 201 of IPC read with sections 66(1)(b) 67 67 81 and 83 of the Bombay Prohibition Act by learned Sessions Judge Baroda wherein at the end of the trial all of them came to be acquitted by the judgment and order dated 1-12-1991. Taking us through the said judgment Mr. Sanjanwala has pointed out to us that the specific allegation against the present detenu in the said case was that he and the other accused Hotchand Chelaram in conspiracy were purchasing methyl alcohol from one Rameshbhai Shanabhai (accused no. 6) and were carrying the same to their bungalows situated in a society at Ajwa Road Baroda and there by adding water five times to the quantity of the said methyl alcohol and after preparing pouches were selling in different areas. Mr. Sanjanwala thereafter invited our attention to para-6 of the said judgment wherein the learned PP incharge of the matter had conceded that so far as the accused nos. 2 to 17 are concerned (which includes the detenu also) there was no legal and trustworthy evidence against them Mr. Sanjanwala further submitted that in both these Sessions Cases the detenu came to be acquitted because there was no evidence against him. Mr. Sanjanwala was further at pains to point out that the matter does not rest here as there is nothing in the judgment to show that the witnesses had turned hostile or that they were administered threats and because of the fear they did not support the prosecution. He further pointed out that except two copies of the acquittal judgments no other documents by way of statements of various witnesses who did not support the prosecution has been furnished to the detenu. Mr. Sanjanwala further submitted that when such is a clear cut position on reading two judgments it is simply surprising as to on what basis the Detaining Authority in the grounds of detention came to observe that ***

(3.) Mr. Sanjanwala on the basis of the above material further expressed serious doubts as to whether in fact the Detaining Authority has personally perused the above two judgments as according to him else such a patent infirmity as the one noticed in the grounds of detention would not have crept in at all. Mr. Sanjanwala finally submitted that the infirmity of non application of mind apparent on the face of the record as high lighted by him above is such a grave one and goes to the very root of the subjective satisfaction of the Detaining Authority that the same clearly renders the impugned order of detention vulnerable enough to be quashed and set aside.