GANPAT SINGH MANGAL SINGH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner who is detained in the Sabarmati prison pursuant to the order of detention passed against him under the provisions of the Gujarat Prevention of Anti. Social Activities Act, 1985 ("PASA" Act) has sought intervention of this Court under Article 226 of the Constitution of India for getting the impugned order of detention set aside. The order of detention recites that the Commissioner of Police Shri P.K. Datta has been 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, covered under Gujarat Prevention of Anti Social Activities Act, 1985, it is necessary to preventively detain the petitioner. The said order of preventive detention dated 18-2-1986 is backed up by the grounds of detention of even date. They were supplied to the detenu along with the detention order. This petition was moved through jail. While admitting the petition, we appointed as amices curiae advocate Miss Kachchava on behalf of the petitioner. Respondent No. 1 has filed his affidavit opposing the petition.

(2.) Amongst others, Miss Kachchava vehemently submitted that the petitioner was not given reasonable opportunity to represent against the detention order on account of the fact that names and addresses of the witnesses who are the alleged victims of the petitioner and summary of whose statements has been furnished as part and parcel of the grounds of detention, were not communicated to the petitioner. Hence, the petitioners right of representation against the impugned order on account of non supply of this relevant material has got adversely affected and as the petitioner's fundamental right under Article 22(5) is violated, the impugned order is liable to be quashed. Having heard the learned Advocates for the parties, we have reached the conclusion that this petition is required to be allowed on this ground and hence, we have not thought it fit to consider other grounds which were sought to be canvassed by the learned Advocate for the petitioner in support of the petition.

(3.) So tar as the aforesaid ground centering round the question of infraction of Article 22(5) of the Constitution is concerned it becomes necessary for us, in order to appreciate this contention, to have a close look at the grounds supplied to the petitioner along with the detention order. These grounds of detention are at annexure. 'B'-. The first three Paras of the grounds refer to various criminal cases in which the petitioner is involved. They are all cases pertaining to the breach of the Bombay Prohibition Act. They indicate that the petitioner is a bootlegger, and that he was involved in illegal manufacture and storage of illicit liquor. This part of the grounds also indicates that the petitioner was involved in chapter cases and in offences of assaulting certain victims mentioned therein and that he was also moving in suspicious circumstances at the bus stands and trying to pick the pockets of passengers. It is obvious that the aforesaid grounds at the highest project the imago of the petitioner as a bootlegger and anti-social person but nowhere these grounds even remotely indicate that the petitioner's activities were such which were likely to endanger public order' or had resulted, at any time, in disturbance of public order. Consequent the order of detention based on the ground that the petitioner was such a person who was involved in disturbance of public order and therefore it was necessary to keep him out of harm's way with a view to preventing him from disturbing public order, cannot be supported on the aforesaid material, which becomes totally irrelevant for that purpose. Having examined the first three Paras of the grounds as aforesaid, we now turn to Para 4 of the grounds which starts with the preamble that the petitioner's activities of selling illicit liquor were anti-social activities and that he was beating people of the locality and was threatening to kill them and was creating atmosphere of danger and terror. This preamble is of general nature and it shows the conclusion to which the detaining authority has reached, but the basis for the said conclusion is furnished by later part of Para 4 of the grounds which mentions summary of the statements of four witnesses. So far as summary of statement of witness No.1 is concerned, it only shows generally that the petitioner was beating people and residents of the locality and was threading and was creating atmosphere of terror. These are general allegations of vague character, which nowhere indicate any specific instances in which the petitioner was involved in disturbance 0f public order. Rest of the statement of witness No.1 pertains to prohibitions raid where the petitioner was caught red-handed with liquor and his mother was also arrested in connection with the said offence. That obviously refers to prohibition case and the last part of the statement of witness No. 1 refers to the personal threat given by the petitioner to the witness and the assault made by him on him. That refers to law and order situation and has nothing to do with the situation of disturbance of public order. Same is the position with the statement of witness No. 3 Therefore, the material covered by summary of these two statements of witnesses Nos. 1 and 3 cannot be relevant for supporting the detention order passed on the basis that the petitioner is a person whose activities disturbed public order and for that purpose he is required to be detained with a view to preventing him from doing so. Then we refer to the summary of statements of witnesses Nos. 2 and 4. These two summaries mentioned in Para 4 of the grounds do indicate that the petitioner was involved in specific instances of anti-social activities wherein public order was disturbed. Because of his activities, on one occasion, people ran helter-skelter and in one case, even traffic on the road got suspended and the shop keepers ran away from the shops. Therefore, statements of witnesses Nos. 2 and 4 do furnish legally permissible material for supporting the detention order. So far as witness No. 5 was concerned, he is a police officer who only involves the petitioner in prohibition cases showing him as a bootlegger and generally alleges that he is harassing people and he is a bully. Thereafter, in Para 5 of the grounds, details about the incident of 15-1-86 are given wherein the petitioner's anti-social activities had disturbed the public order at Navjivan bus stand. However, that material which is indicated in Para 5 of the grounds is referable to the statement of witness No. 4. It must, therefore, be said that in the grounds of detention are found at-least two statements of witnesses Nos. 2 and 4, which definitely furnish material, which can be legally considered for supporting the detention order. In ordinary course, this material would have supported the detention order as section 6 of the Act entitled the detaining authority to fall back upon legally permissible material for supporting the detention order, dehorns other material which may be found defective. However, the difficulty in the way of the respondents is that names and addresses of witnesses Nos. 2 and 4 who are the alleged victims of the detenu's nefarious activities are not communicated to the petitioner along with the grounds of detention. It was, therefore, vehemently submitted by the learned Advocate for the petitioner that the petitioner having been supplied such vague material in the form of statements of unknown witnesses Nos. 2 and 4 the same did not enable the petitioner to effectively represent against the detention order on the basis of such vague material and the petitioner's fundamental right under Article 22(5) was violated and, therefore, this material has also become tainted and cannot support the detention order. In order to meet this contention, the learned advocate for the respondents fell back upon the co-ultimate Para of the grounds which states that while passing the detention order, the detaining authority in exercise of the power under section 9(2) has not given the names and addresses of the witnesses while the names of police witnesses are given. That the witnesses whose names and addresses are not furnished the detenu have informed that they are afraid of the danger to their lives and properties if there names are communicated to the petitioner. Having considered that and other evidence, the detaining authority decided not to disclose the names and addresses of these witnesses to the detenu. Placing reliance on these averments, it was submitted that thus, the detaining authority has withheld names and addresses of these witnesses in the public interest as contemplated by section 9(2) or for that matter as per Article 22(6) of the Constitution. Our attention was also invited by the learned advocate for the respondents to the affidavit-in-reply filed by the detaining authority. In Para 14 of the affidavit, it has been stated that these witnesses have furnished the facts only on being assured that their identities will not be revealed to the detenu. The witnesses concerned are genuinely and reasonably afraid of the detenu. The detaining authority has withheld the names and addresses of the witnesses after carefully considering the matter and after realising that who, in the distant past had assaulted a person only because he had intervened while the detenu was belabouring his son father is bound to be considered by the common man as a person who could harm them as well. The aforesaid stand taken by the detaining authority and the above recitals in the penultimate Para of the grounds of detention, no where show that the detaining authority was alive to his obligation on being satisfied in the public interest about the need of withholding names and addresses of the victims of the detenu who gave statements. No such indication is found either how the grounds of detention even from the affidavit in-reply. The learned Advocate for the respondents therefore, was rightly driven to fall bake on the summary of the reasons recorded by the detaining authority while passing the impugned order and on what was stated therein. That would certainly show contemporaneous record about recording of the aforesaid satisfaction of the detaining authority about the detention order and the relevant grounds which had weighed with him. When he looked at the file which was made available to us, we found in that connection that all that the detaining authority had mentioned was that he had come to the conclusion that the detenu was a dangerous and head-strong person and if the names and addresses of the witnesses are revealed to him, he would certainly indulge in violent acts and would damage their person and property. Consequently it was not found advantageous to disclose the names and addresses of the witnesses to the detenu. These nothings in the file instead of advancing the case of the respondents further weakens the same. It becomes apparent that the detaining authority had not reached any genuine satisfaction about the need for with holding the names and addresses of the witnesses from the detenu in the public interest as required by Article 22(6) of the Constitution as well as section 9(2) of the Act. Once that eonc1usion is reached it becomes obvious that supplying of statements of witnesses Nos. 2 and 4 without names and addresses of the concerned witnesses to the detenu rendered the material supplied to him defective and resulted infraction of Article 22(5) of the Constitution in inasmuch as the detenu was deprived of a reasonable opportunity of filing his representation against the order of detention based on such vague material. He would naturally be kept guessing as to who were the alleged victims of his activities who had given these statements and whether they were genuine or fictitious persons or whether they were harboring any grudge against him or whether they were residing in fact at the place where the alleged nefarious activities are said to have been committed or in fact they had given such statements. All these defences become non-available on account of non-supplying of the names and addresses of the witnesses. Consequently what was stated in their statements could not have been relied upon by the respondent detaining authority for passing the impugned order of detention. Once this material which becomes stained is taken out, no other material is left in the field which can be legally relied upon by the detaining authority for supporting the order. Consequently, section 6 of the Act which is in parimateria with section 5 A of the COFEPOSA cannot be pressed in service by the respondents on the facts of the present case.