SHAKARIBEN Vs. COMMISSIONER OF POLICE AHMEDABAD CITY

JUDGEMENT

(1.) The petitioner detenu has challenged the order of detention (Annexure - A) dated 31/10/1991 passed by the Police Commissioner Ahmedabad City detaining the petitioner under the Gujarat Prevention of Anti-Social Activities Act 1985 (PASA) on the ground that the petitioner is carrying out her activities in the area coming under the jurisdiction of Sabarmati Police Station Ahmedabad City of selling liquor About 17 cases have been filed against her for the offences punishable u/Secs. 66 (1) (b) and 65 (E) of the Bombay Prohibition Act.

(2.) Mr. Patel Ld. Advocate appealing for the petitioner submitted that the petitioner was not supplied legible copies of the documents which are at pages: 12 17 24 54 65 77 and 89 along with grounds supplied to her therefore he has urged that the detention order is vitiated. In support of his contention Mr. Patel has relied upon the judgment of the Supreme Court in case of Shrimati Dharmista Bhagat v. State of Karnataka & Anr. reported in 1989 Supp. (2) Supreme Court Cases 155 and the Judgment of this Court in case of Mulchand Shobhrajmal Gavani v. The Secretary to Government of Gujarat & Ors. reported in 1991 (1) G. L. R. 421. It is to be stated that on 19/12/1991 this Court issued Rule and made it returnable on 2 8/01/1992 but no Reply Affidavit is filed so far controverting the averements made in the petition. Mr. S. R. Divetia Ld. APP has submitted that defect if any in supplying the legible copies of the material documents is cured by the Detaining Authority by supplying the legible copies to the detenu on 2 1/12/1991 on her demand therefore Article 22 (5) is not infringed in this case. Under Section 9 (1) of the Act material is to be supplied along with the ground and the detention order to the detenu immediately and not later than 10 days. It is not in dispute that the copies of the documents referred to above which were supplied to the detenu were not legible. The ground does not merely mean a recital or reproduction of a ground of a satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of facts. It means something more. That something is the factual constituent of the ground on which the subjective satisfaction of the authority is based. All the basic facts and material particulars therefore which have influenced the Detaining Authority in making the order of detention will be covered by ground within the contemplation of Article 22(5) of the Constitution of India and are required to be communicated to the detenu. Therefore the non-supply of legible copy of the aforesaid vital documents like Bail order etc. at pages No. 12 17 24 54 65 77 and 89 renders the order of detention illegal and bed. We are supported in our view by the judgment of the Division Bench of this Court which was delivered by my learned brother J. U. Mehta J. in case of Mulchand Shobharajmal Gavani v. The Secretary to Government of Gujarat reported in 1991 (1) G. L. R. 421. Relying upon the judgment of Supreme Court in case of Shrimati Dharmista Bhagat v. State of Kanataka & Anr. reported in 1989 Supp. (2) Supreme Court Cases 155 it is held that the failure on the part of the Detaining Authority to supply legible copy of the said relevant document to the detenu for making an effective representation infringed the detenus right under Article 22 (5) of the Constitution of India. Not supplying the legible copies of the aforesaid material documents along with the grounds of detention a valuable right of the detenu to make effective representation under Article 22 (5) of the Constitution of India is infringed. Merely because the legible documents were supplied later on to the detenu will not of any help to the Detaining Authority to submit that the petitioner was supplied with the legible copies of the documents therefore there is no prejudice caused to the detenu to make an effective representation. By supplying the legible copies after nearly a period of 2 months of the order of. detention the basic defect of not supplying legible copies of the documents within the prescribed period provided u/Sec. 9 (1) of the act cannot be cured. It becomes fatal. Therefore in our opinion not supplying legible copies of the material documents to the detenu by the Detaining Authority within the prescribed time provided u/Sec. 9 (1) of the Act amounts to infringement of the valuable right of the detenu to make effective representation. Therefore the impugned order of detention is required to be quashed and set aside.

(3.) In the result this petition is allowed. The impugned order of detention dated 31/10/1991 (Annexure-A) is quashed and set aside and the petitioner detenu is ordered to be released forthwith if not required in any other case. Rule is made absolute. (NVA) Rule made absolute.