ZUBEDABIBI RASIDKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . Arifkhan Pathan, the detenu has been detained preventively under the PASAA-1985 as a 'bootlegger' vide the orders dated February 4, 1994, passed by the Commissioner of Police, City of Surat, the respondent No. 1 herein. These orders of detention are in challenge before us in the present petition, which has been filed by the mother Smt. Zubedabibi Pathan.

(2.) . The grounds of detention bearing even date would go to show that, a subjective satisfaction has been recorded to the effect that, the detenu is a 'bootlegger'. This subjective satisfaction admittedly rests upon certain prohibition cases registered against the detenu and the statements of the witnesses recorded by the Sponsoring Authority. After reaching the subjective satisfaction that the detenu indulges in the nefarious activities as a bootlegger the detaining authority has proceeded further to say that the detenu has been released on bail by the competent Court in all the cases registered against him under the Bombay Prohibition Act, 1949. But as he has been released on the usual terms and conditions by the competent Court, and as the detenu has not committed any breach of any of the conditions imposed by the Court releasing the detenu on bail, the proceedings under Sec. 437 of the Code of Criminal Procedure, 1973 could not be initiated. This part of the subjective satisfaction comes under a heavy criticism at the hands of the learned Counsel Mr. R. S. Sanjanwala who appears on behalf of the petitioner. We propose to advert to this part of the subjective satisfaction presently. Any how, before going to that part of our opinion, it shall have to be appreciated that the grounds of detention speak of 2 Schedules which would rest on the offence registered against the detenu. Annexure-1 speaks of 3 prohibition offences registered against the detenu at the Athwalines Police Station within the City of Surat. Annexure-2 is in respect of the prohibition offence again registered against the detenu at the very same police station. The grounds of detention also do make a reference to the statements of certain witnesses who allegedly have said regarding the anti-social activities carried on by the petitioner acting in the capacity of a bootlegger.

(3.) . The orders of detention have been challenged as usual on very many counts adumbrated in the memo of the petition. Any how, as we propose to decide the petition only on one, we would prefer to concentrate upon the same contention. The learned Counsel for the petitioner urges that the subjective satisfaction recorded by the detaining authority that, as the detenu has been released on bail by the competent Court on usual terms and conditions and as the detenu has not committed any breach of any conditions of the bail orders, the procedure as prescribed under Sec. 437 of the Code of Criminal Procedure, 1973 could not be adopted is bereft of any significant legal assistance. This contention, according to us, is, well founded.