KALIDAS CHANDUBHAI KAHAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, who is the brother of the detenu Parshuram @ Pashiyo @ Pisi, Chandubhai Kahar has filed this application for quashing and setting aside the order of detention passed against the detenu dated 1 7/10/1992 by the Commissioner of Police, Vadodara City, exercising powers under Sec. 3 of Gujarat Prevention of Anti-Social Activities Act ("PASA" for short), on his being satisfied that it is necessary to pass an order directing the detenu to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Vadodara City. The detenu was served with the order on the same day. Along with that order, the grounds of detention were also served on him. On perusal of the grounds of detention, it appears that there are three cases registered against the detenu. Out of these three cases, the first two cases are pending trial and the last one is under investigation. There are three statements of three witnesses recorded, but the names and addresses of these witnesses are not disclosed in the public interest exercising privilege under Sec. 9(2) of PASA. The detaining authority has also taken into consideration the other factors which were necessary to be considered for the purpose of passing the detention order against the detenu.

(2.) In the petition various grounds have been raised challenging the legality and validity of the impugned detention order. However, Mr. R. S. Sanjanwala, the learned Advocate appearing for the petitioner has mainly concentrated to the ground of non-supply of copies of the bail application and the bail order. He submitted that the application for bail and the bail order are the vital documents, particularly when the detenu is released on bail before the detention order is passed against him and when the aforesaid documents have been considered by the detaining authority for arriving at the subjective satisfaction, it is the duty of the detaining authority to supply the copies of the said vital documents to enable the detenu to make effective representation against the detention order. He further submits that though the detenu was supplied with copies of the aforesaid documents, the copy of the bail order supplied to the detenu, was not legible and therefore, it amounts to non-supply of copy of the said bail order and thereby, his right to make effective representation under Art. 22(5) of the Constitution of India has been infringed.

(3.) In support of his aforesaid submission, he relies on a decision of the Supreme Court in the case of Smt. Dharmista Bhagat v. Slate of Karnataka & Anr., reported in 1989 Supp2 SCC 155. In the said case. it is held that it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Hence, the refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenu for making an effective representation infringed the detenu's right under Art. 22(5) of the Constitution. 3A. In the said case, the decision in the case of Bhupinder Singh v. Union of India, reported in 1987 0 SCC 234 equivalent to 1987 SCC (Cri.) 328 was relied on wherein it was held that the detenu made a complaint before the Advisory Board that the copies of the documents which were supplied to him alongwith the grounds of detention were not legible and he placed before the Advisory Board a copy of representation said to have been made by him for supply of legible copies of the documents. The legible copies of the documents were, however, supplied to the detenu after the detention order was confirmed. It was also held that the detenu was denied the opportunity of making a representation and as such, there was a clear contravention of the right guaranteed by Art. 22 of the Constitution. Relying on the aforesaid decision, Mr. Sanjanwala, the learned Advocate appearing for the petitioner has submitted that in the present case the copy of the bail order supplied to the detenu, is not legible and therefore, it amounts to non-supply of the copy of the said document, affecting the detenu's right of making an effective representation.