MER KARSAN DULE Vs. DISTRICT MAGISTRATE JUNAGADH

JUDGEMENT

(1.) The petitioner has challenged in this petition under Article 226 of the Constitution, the order passed by the District Magistrate, Junagadh ordering his preventive detention under the provisions of Gujarat Prevention of Anti-Social Activities. On the basis of the aforesaid history sheet of the petitioner, the detaining authority has recorded his subjective satisfaction to the effect that the detenu was a dangerous person as laid down by section 2(1) of the Prevention Act and because of his illegal activities, atmosphere of fear and terror had prevailed in the residents of village Boria and residents of surrounding villages. The petitioner was Act, 1985 (The Prevention Act for short). The order of detention is dated 10.8.1985. It recites that the detaining authority is satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that the said detenu be detained. The petitioner was also supplied with grounds of detention dated 10.8.1985. They are in Gujarati. They are at annexure B to the petition. These grounds recite that the petitioner was involved in six criminal cases as under: - <FRM>JUDGEMENT_579_CRIMES1_1986Html1.htm</FRM> also supplied with supporting material alongwith the grounds of detention. This petition was admitted to final hearing on 2/9/1985 and an affidavit in reply has been filed by the Distt. Magistrate, Junagadh opposing the petition. It has been supported by the affidavit-in-reply of Mr. M.T. Parmar, Under Secretary, Home Department. When this petition was called out for final hearing today before us, Mr. Patel for the petitioner amongst others raised the following contention in support of the petition: - That the impugned order of detention is null and void inasmuch as there is no material with the detaining authority to be subjectively satisfied about the alleged nefarious activities of the petitioner as a dangerous person which could have disturbed public order and as there is no such material, the entire exercise has failed.

(2.) In our view, this petition is required to be allowed on the aforesaid ground alone. Hence, we have not considered other contentions which were tried to be urged by Mr. Patel in support of the petition.

(3.) So far as the aforesaid contention is concerned, the relevant provisions of the Prevention Act have to be noticed at the outset. As per section 3(1) of the Prevention Act, it has been provided that the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. As per sub-section (4) of section 3, it has been laid down that a person shall be deemed to be acting in any manner prejudicial to the maintenance of public order when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or Immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. In the explanation to sub-section (4) of section 3, it has been provided that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or wide spread danger to life, property or public health. The aforesaid provisions of the Act clearly indicate that before any valid and legal order of detention is passed against any one under section 3(1), such a person is to be shown to be either dangerous person or a bootlegger, drug offender or immoral traffic offender or property grabber and it has to be further shown that the activities of such person have affected adversely or are likely to affect adversely the maintenance of public order. So far as the grounds of detention are concerned, it is obvious that they refer to various nefarious activities of the petitioner for which diverse criminal cases were filed against him. One was disposed of while the rest were pending. They show that the petitioner was involved in criminal offences under Chapter 16 or 17 of the I.P.C. and also offence under the Arms Act, for a period of more than three successive years ranging from 1982 to 1985. On this aspect, Mr. Patel for the petitioner did not raise any dispute. In fact, he clearly conceded that looking to the material on record, the petitioner can be styled as a dangerous person. However, his grievance was that the entire material relied upon by the detaining authority nowhere shows that any of his activities at any time had disturbed public order as contemplated by the Act. So far as this aspect of matter is concerned, Mr. Patel is right. We have scanned the supporting material supplied to the petitioner alongwith the grounds. It is not in dispute that this is the only material which was relied upon by the detaining authority in passing the impugned order. The supporting material shows that on various occasions, between 8/8/1982 and 13/6/1985, the petitioner was involved in the incidents which can be said to have connected him with the criminal offences under the provisions of Chapters 16 and 17 of the I.P.C. as well as under Chapter 5 of the Arms Act. But there was no whisper in any of this material about disturbance of public order or even tempo of public life because of the alleged activities of the petitioner as revealed by this material. It is, however, fairly submitted that this material could have been relied upon by the detaining authority to base the subjective satisfaction about likelihood of disturbance of public order because of these activities. However, even though such material was there on record, the subjective satisfaction in this connection was absent. The only subjective satisfaction of the detaining authority in the Hight of the aforesaid matter was to the effect that because of the activities as revealed from the aforesaid material, atmosphere of terror and fear had prevailed in residents of village Boria and residents of surrounding areas. This satisfaction cannot be based on the material on record as the material on record did not suggest that in fact, public order situation was disturbed in the concerned localities where the petitioner is alleged to have carried on his nefarious activities revealed by the aforesaid material. Thus, the subjective satisfaction of the detaining authority as recorded in tae grounds of detention to the effect that the alleged nefarious activities of the petitioner had in fact disturbed public order is based on no material whatsoever. Consequently, such satisfaction not based on any material would fail and would not be a genuine or valid subjective satisfaction and even though from the very same material, different subjective satisfaction could have been reached by the detaining authority to the effect that public order was likely to be disturbed by the alleged nefarious activities of the petitioner as revealed by the material on record, no such satisfaction was in fact reached by him, as seen from the grounds of detention themselves. Thus, this is a case in which for the subjective satisfaction reached, there was no material whatsoever while for subjective satisfaction which could have been reached on the material which was already available, there was in fact no subjective satisfaction reached. In that view of the matter, the detention order which resulted from such vitiated satisfaction would fail. This aspect of the matter is no longer reintegrate as by our recent judgment in special criminal application No. 624 of 1985 decided on 28th October, 1985, we have taken the view that if there is no material to sustain subjective satisfaction about the actual disturbance of public order by the alleged activities of the detenu, the detention order would be liable to fail even if there might be material on record on the basis of which another type of subjective satisfaction about likelihood of disturbance of public order could have been reached, when in fact it was not reached. Under circumstances, the aforesaid contention of Mr. Patel has got to be accepted.