KALIDAS Vs. POLICE COMMR BARODA

JUDGEMENT

(1.) By this petition, the petitioner challenges the order of his detention passed by the Commissioner of Police, under Section 3 (1) of the Gujarat Prevention of Anti-social Activities Act, 1985 (hereafter referred to as "the Act"). This petition was first heard by a Division Bench (Coram : A.M. Ahmadi and D.H. Shukla, JJ.). It was, inter alia, contended before the Division Bench that as the impugned order of detention was passed by the Commissioner of Police, he had the power to vary or rescind the same under Section 21 of the Bombay General Clauses Act, 1904 (hereafter referred to as "the Act of 1904"); and, therefore, he was under a legal and constitutional obligation to consider the representation made by the detenu for that purpose. The Division Bench did not agree with other contentions raised on behalf of the detenu. It was also not inclined to accept the aforesaid contention. However, in view of the earlier decision of the Division Bench consisting of myself and my learned brother M.B. Shah, J. in spl. Criminal Appl. No. 614 of 1985 decided on 3-9-1985, wherein it is observed as under :

(2.) Article 22 of the Constitution gives protection against arrest and detention in certain cases. So far as preventive detention is concerned, it contains two safeguards. One is that no law providing for preventive detention can authorise the detention of a person for a longer period than three months unless an Advisory Board constituted in accordance with the provisions contained in clause (4) of that Article reports before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention, except in cases where there is a law made by the Parliament prescribing circumstances under which and the class or classes of cases in which a person may be detained for a longer period without obtaining the opinion of the Advisory Board. Second safeguard is contained in clause (5) of that Article. It provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the other has been made and shall afford him the earliest opportunity of making a representation against the order. Though it provides for making of a representation, it does not provide as to whom such a representation is to be made.

(3.) The Gujarat Prevention of Anti-social Activities Act, 1985 provides for preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers, with a view to preventing them from acting in any manner prejudicial to the maintenance of public order. Section 3(1) of the Act confers power on the State Government to pass an order of detention against a person, if it is satisfied with respect to him 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. Sub-Section (2) enables District Magistrates and Commissioners of Police, if authorised in that behalf and on being so satisfied to exercise the power contained in Sub-Section (1). When an order of detention is made by such an authorised officer, he is required to forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter. The order passed by such an officer cannot remain in force for more than 12 days unless in the meantime it is approved by the State Government. Section 9 of the Act requires the detaining authority to communicate to the detenu the grounds on which the order of detention has been made. The grounds are required to be communicated as soon as possible but not later than seven days from the date of detention. That Section also casts an obligation on the detaining authority to afford the detenu earliest opportunity of making a representation against the order of detention to the State Government. Section 9 of the Act thus takes care of the requirements of Article 22 of the Constitution, and further provides to whom the representation can be made.