YAKUB ISMAIL CHHIPA Vs. DISTRICT MAGISTRATE BHARUCH

JUDGEMENT

(1.) "Subjective Satisfaction" .What it is ? What indeed is its scope and purport, and accordingly therefore, the true meaning of it, is the subjectmatter of discussion in this petition, so as to understand its implication in proper perspective, vis-a-vis the aspect of Non-application of mind, more often urged and also occasionally allowed declaring ab initio invalid the impugned order of detention.

(2.) Yakub Ismail Chhipa, by this petition under Art. 226 of the Constitution of India, has moved this Court challenging the impugned order of detention dated 21-10-1994, passed against him under Sec. 3(2) of the Gujarat Prevention of Anti- Social Activities Act, 1985, by the District Magistrate, Bharuch, inter alia praying for quashing and setting aside the same and to set him at liberty forthwith. He has been detained as a "bootlegger", as defined in Sec. 2(b) of the PASA, on several allegations as stated in detail in the grounds of detention. 2A. Mr. H. R. Prajapati, the learned Advocate while challenging the impunged order of detention has vehemently contended that since the said order suffers from the patent vice of the non-application of mind on the part of the Detaining Authority, the same deserves to be quashed and set aside at-once and accordingly the petitioner be set at liaberty forthwith. Making good this contention, Mr. Prajapati has invited attention of this Court to the relevant portion of one of the grounds of the detention which pertains to the complaint No. 7 wherein it is alleged that "on 15-6-1994 at 16-40 hours the police personnel of Nabipura Police Station had arrested the petitioner and his associates when they were found transporting 90 litres of country liquor in a rickshaw bearing No. GRV-2658. Accordingly on the very day, the offences unde Secs. 66(b), 65(e) and 81 of the Bombay Prohibition Act, 1949, came to be registered against the petitioner as C.R. No. III-169/94 at Nabipura Police Station, wherein he was ultimately released on bail in sum of Rs. 500.00 on his executing the personal bond of the like amount. It is further stated in the alleged grounds of detention that since these offences were bailable, as per the usual practice, on the accused furnishing surieties and filling up the personal bond before the concerned police station officer itself, he is immediately released on bail. In such cases of bailable offences, it is indeed not necessary to submit any bail application or for that purpose to pass any order thereunder . Mr. Prajapati thus after laying the factual foundation for his arguments from the grounds of detention has invited the attention of this Court to Sec. 119 of the Prohibition Act, 1949, wherein it is specifically provided that the offences under Sec. 65, 67, 67(1)(a) and 68 of the Act shall be non-bailable offences. According to Mr. Prajapati under the circumstances despite the fact that the alleged offence under Sec. 65(e) is a nonbailable offence, still however, amazingly enough in the grounds of detention, signed by no less an authority then the District Magistrate himself, it has been described as a bailable offence .According to the learned Advocate Mr. Prajapati this is quite startling and ex-facie demonstrates non-application of mind on the part of the Detaining Authority. Remotely, even if the concerned police officer somehow committing the alleged mistake whereby despite the alleged offence being under Sec.65(e) a non-bailable, he released the petitioner on bail without producing him before the Court which was the only competent functionary under the Code to pass order of bail, but then the Detaining Authority, an experienced, seasoned officer will certainly not commit such a patent mistake . It is from this angle only that had indeed the Detaining Authority himself prepared the grounds of detention then the glaring mistake like the one that has crept-in in the present case would not have occurred at all .Thus, this serious mistake according to Mr. Prajapati clearly indicates that the Detaining Authority has mechanically signed the ready-made grounds of detention and the detention order passed thereunder without subjecting it to his subjective satisfaction. This per se is fatal enough to invalidate the detention order.

(3.) Heard Mr.M.R.Raval, the learned AGP who in fact had indeed no answer to the indisputable contention raised .Thus, the contention raised by Mr. Prajapati having indeed a great force fully carries the point to the hilt to allow this petition.