NARSINH CHHOGAJI Vs. POLICE COMMISSIONER

JUDGEMENT

(1.) The petitioner who is a detenu under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985 (TTPASAT for short) has challenged the order of preventive detention dt. 26-2-1986 passed by the Commissioner of Police, Baroda City. It is at Ann. A to the petition. The order 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 public order covered under the PASA, it is necessary to make an order of detention against the petitioner. The petitioner was supplied with grounds of detention of even date in support of the detention order. Petition was admitted to final hearing on 24.6.86. In response to the rule issued in this petition, the detaining authority has filed its affidavit-in-reply. Mr. M.T. Parmar, Under Secretary to Government, Home Department (SpI.) Gandhinagar has also fined his affidavit-in-reply.

(2.) Mr. Akshya H. Mehta, learned Advocate for the petitioner, has raised various contentions in support of the petition. Amongst others, he submitted that the detaining authority is alleged to have been satisfied in public interest about the need to withheld the names and addresses of the witnesses viz, witnesses Nos. 1 to 3 whose statements are referred to in the grounds of detention alongwith their summaries and who are alleged to be afraid of the petitioner and, therefore, their names and addresses are withheld in the public interest.Mr. Mehta placing reliance on a judgment of Division Bench of this Court in the case of Bai Amina v. State of Gujarat submitted that all the legal requirements underlying exercise of such power under section 9(2) of the PASA and Art. 22(6) of the Constitution have not been complied with in the present case and hence, the act of withholding names and addresses of these witnesses is unauthorised and illegal and has amounted to denial of reasonable opportunity to file a representation against the detention order to the detenu under Art. 22(5), so far as the detention order basted on this material goes. Mr. Mehta further submitted that if this material is taken out, there remains only the statement of head-constable Mohan Pavji who is styled as witness No 5 in the grounds of detention. That what he has stated is based on pure hear-say and he was not a witness having any personal knowledge about the incident in question, which is alleged to have affected the public order on 14-1-1986. In the result, there would remain no material whatsoever against the detenu which would indicate that the detenu's alleged nefarious activities as a dangerous person had affected the public order at any time and which would in its turn enable the detaining authority to come to any rational prognosis -about the need to preventively detain the detenu with a view to seeing that he does not commit such nefarious activities in future.

(3.) Having heard the learned advocate for the petitioner as well as the learned P.P. for the respondents, we have come to the conclusion that this petition is required to be allowed only on this point and hence, we have not turned to other points canvassed in support of the petition. So far as aforenoted contention is concerned, it may be kept in view that the grounds of detention supplied to the petitioner in support of the detention order, when scanned from and to end, clearly indicate in the first six pages that the detenu was a bootlegger and was involved in many illegal activities pertaining to breach of the Bombay Prohibition Act. Various Criminal Cases were filed against him on that basis from time to time. However, these activities mentioned in first six pages of the grounds of detention do not indicate that the petitioner as a bootlegger had done anything at any time which had affected maintenance of public order, meaning thereby, any of his activities as a bootlegger had disturbed the even tempo of public life in a given locality only because of his anti- prohibition activities. Thus, the prohibition cases filed against the petitioner as listed in para 1 of the grounds of detention cannot be of any avail to the detaining authority in supporting the detention order, based on the ground that the activities of the petitioner had affected maintenance of public order. We then came to para 2 of the grounds. Para 2 of the grounds at the outset generally states that the petitioner is in the habit of consuming liquor in public and then he moves in tipsy condition and, therefore, he is in the habit of disturbing public peace. These are general allegations by themselves quite incompetent to support any detention order as they do not reflect any concrete material on this aspect. Even that apart, merely because person is moving in a tipsy condition in public that by itself would not effect even tempo of the public. Three incidents mentioned in para 2 of the grounds dated 18-4-1984, 28-3-1984 and 9-7-84 also indicate that the petitioner had committed breaches of sections 66(1) and 85(1)(b) of the Bombay Prohibition Act as he was found drunk and moving in tipsy condition in public. That would be far away from the allegation that the detenu had disturbed public order at any time which, to recapitulate, is the only basis of the detention order. Then we come to para 3 of the grounds which did indicate specific allegations made by witnesses Nos. 1 to 3 who had stated specific instance which took place on 14- 1-1986 in Baranpura, Jasud Mohalla, Haroda near the petitioner's place of business of vending illicit liquor and which had resulted in disturbance of public order on the spot. Then, we have got the statement of witness No.4 head-constable Mohan pavji which also generally referred to abnoxious activities of the petitioner as a bootlegger and which indicated that be was manufacturing illicit liquor and such liquor was being passed on by him as English wine and that the petitioner was a quarrelsome, head-strong and furious person. Before we refer to what the bead constable Mohan Pavji has stated in his statement, summary of which is given in the grounds of detention, we may mention that so far as the first three witnesses are concerned, their names and addresses have not been disclosed to the petitioner alongwith the grounds of detention. The only reason given for not doing so is found in the penultimate para of the grounds of detention. These reasons when translated in English read as under: So far as the material on the basis of which detention order bas been passed is concerned, names and addresses of the witnesses have not been furnished to the detenu was as per section 9(2) of the Act. Names of the police witnesses have been given. Witnesses whose names are not supplied to the detenu have stated that if their names are disclosed, their lives and properties would be in danger from him and consequently, it is decided not to disclose the names and addresses of these witnesses, to the detenu. A mere look at the aforesaid recitals in the grounds of detention indicates that the detaining authority was nowhere satisfied while taking the decision under section 9(2) of the act about the need to withhold names and address; s of the witnesses from the detenu in public interest. However, we may turn to the affidavit in-reply with a view to seeing whether the position is in any way improved for the detaining authority. In para 5 of the affidavit-in-reply, the detaining authority has stated that copies of the statements of witnesses were supplied to the petitioner though the names and addresses of the persons who have given their statements are not disclosed. If the names of the witnesses were disclosed, then it would have a danger to the lives of the witnesses and also to their properties as the petitioner is a dangerous person. That names and addresses were not given in the interest of public order. In para 6 of the affidavit-in-reply it has been further stated that names and addresses of the persons who have given their statements were withheld in the public interest. It is true that in the grounds of detention, there is not even a recital that withholding of names and addresses of the witnesses was based on any public interest. However, the detaining authority in the affidavit-in-reply has tried to salvages the position and has made a statement that it was done in public interest. However, the only public interest which appears to have been kept in view by the detaining authority is the fact that the witnesses were afraid of danger to their lives and properties if their names were disclosed. Nowhere the detaining authority has made any attempt to indicate how disclosing of the names and addresses of the witnesses would have affected exercise of the power of detention and how the entire exercise of power of detention would have failed and the detenu would have remained at large and would remain imposed on the society as a menace to the members of the public nor any attempt is made to show that exercise of satisfaction regarding public interest underlying the decision of withholding of these names and addresses was resorted to after having considered the question regarding the subjection of the personal interest of the detenu to the public interest of the locality where the functioned and operated and would remain so operative but for the detention order. As that was not done, mere ipso dixit of the detaining authority in the affidavit-in-reply that names and addresses of the witnesses were withhold in the public interest appears to be a bald statement not based upon any relevant genuine subjective satisfaction underlying such exercise which the detaining authority was required to undertaken at the relevant time when it decided to withhold this material from the petitioner. The learned P.P. vehemently submitted that names and addresses of the witnesses merely constituted the source from which the material flows and that by series of judgments of the Supreme Court, it has been held that for the purpose of Article 22(5) of the Constitution, source of information need not be supplied to the detenu. As a general proposition, this argument is correct. But we have examined this contention in details in other decisions and we have taken the view that if the source of information indicates victims of the petitioner detenus alleged nefarious activities, such source would be relevant as the detenu otherwise may be kept guessing as to who were the persons who had deposed against the detenu before the competent authority about his alleged nefarious activities and the adverse effect thereof upon them, and to that extent, names and addresses of such victims would certainly remain material for the purpose of Article 22(5) of the Constitution. It must, therefore, be held that there was no genuine satisfaction arrived at by the detaining authority at the relevant time in connection with withholding of names and addresses of the witnesses Nos. 1 to 3 from the detenu in public interest. Once that conclusion is reached, statements of witnesses Nos. 1 to 3 would naturally go out of consideration and that would not supply any legal material on the basis of which such detention order can be based. This material would become tainted as it would suffer from in complete Nance of material particulars and would certainly adversely affect the petitioner's constitutional right under Article 22(5) of the Constitution of making an affective representation against the detention order based on such tainted and invalid material.