ROSHANBIBI MOHMADKHAN PATHAN Vs. COMMISSIONER OF POLICE SURAT

JUDGEMENT

(1.) The petitioner who is detained under the provisions of Gujarat Prevention of Anti-Social Activities Act 1985 (the PASAA for short) by an order dated 20-4-1988 passed by the Commissioner of Police Surat city has brought in challenge the said order on diverse grounds. The petitioner was taken in custody on the same day and was furnished the grounds of detention of even date. At the time of final hearing of this petition Mr. Kapadia for the petitioner raised the following contentions:

(2.) xxx xxx xxx xxx

(3.) Contention No.1: So far as this contention is concerned our attention was invited by Mr. Kapadia to the grounds of detention at page 13. In para 1 of the grounds it is stated that the petitioner was involved in 31 offences under the Bombay Prohibition Act. Out of these cases 20 cases were pending trial and 11 cases were pending investigation. We were then taken to para 3 of the grounds which states that the petitioner was arrested for the offence under the Bombay Prohibition Act on 14-2-1986 and after being released on bail she had again involved herself in other offences and by 11-2-1988 she was arrested in 31 prohibition cases under the Bombay Prohibition Act. We were then taken to para 4 of the grounds which stated that having carefully considered the aforesaid evidence and in the light of what is stated in para 1 of the grounds the detaining authority was satisfied that the petitioner was running liquor den keeping in her possession country liquor and that she had been involved in offences under the Bombay Prohibition Act and she was a known bootlegger. Then follow certain recitals which showed that it was not possible to take steps under S. 437 of the Cr. P. C. for getting her bail cancelled and there was no use resorting to steps under S. 93 of the Bombay Prohibition Act or under Ss. 107 and 110 of the Code of Cr. Procedure nor any purpose would be served by resorting to steps under the Bombay Police Act for externing the petitioner from the concerned area. Then follows sub-para of para 4 which states that her activities have spread to large extent and she was always involved in such activities. Thereafter occur the following sentences which when translated in English read as under: Steps taken against you under any law have no effect on you and you have continued your activities. With a view to giving fillip to your bootlegging activities you are again and again disturbing public order. Because of your aforesaid activities no safety is left for person and property of the members of the public. Hence with a view to preventing disturbance of public order because of your bootlegging activities and in public interest it is found necessary and proper to detain you under PASAA and I am satisfied in this connection. (Emphasis supplied.) Relying on the aforesaid averments in sub-para (1) of para 4 of the grounds it was submitted by Mr. Kapadia that the detaining authority while arriving at subjective satisfaction about need to preventively detain the detenu considered two aspects of the matter viz. (1) steps taken against the petitioner under any law and (ii) steps which can be taken by way of less drastic remedy under any other laws. So far as latter aspect is concerned the detaining authority came to the conclusion that no useful purpose will be served by taking steps in future under any other laws by way of less drastic remedy. But so far as former aspect is concerned the detaining authority referred to steps which were actually taken in past against the detenu under any law and that law was only the Bombay Prohibition Act because the earlier paras of the grounds clearly indicated that the petitioner was already proceeded against on various occasions only under the Bombay Prohibition Act. No other steps were taken against her under any law save and except the Bombay Prohibition Act. It was therefore submitted that when actual steps were taken against the petitioner under only one law viz. Bombay Prohibition Act the detaining authority made incorrect assumption and observed that steps taken under any law against the detenu had no effect meaning thereby he thought at that stage that actual steps might have been taken against her under more than one laws and so far as this assumption is concerned it is factually not borne out and therefore the subjective satisfaction based on this imaginary ground has got vitiated and hence the order must fail. In this connection our attention was invited by Mr. Kapadia to Oxford English Dictionary Vol.I 1970 Edition (reprint) at page 378 wherein various meanings of the word any have been given. He put emphasis on the meaning of any in the said dictionary to the effect that it would mean other and it is used in singular as well as plural sense. It was submitted that when the detaining authority used the words steps taken under any law had no effect he meant to convey that steps might have been taken under more than one laws against the detenu and they had no effect on her; while in fact the steps were taken only under the Bombay Prohibition Act and therefore the aforesaid observations which are part and parcel of the process of subjective satisfaction are clearly based on imagination. He also placed strong reliance on the judgment of this very bench in special criminal application No.494 of 1988 decided by us on 28-12-1988. It is true that in that decision identical recitals used by the detaining authority in that case were construed and in the light of the grounds of detention in that case and in the context and settings of various grounds it was held that the detaining authoritys observations that steps taken against the petitioner of that case under any law tried to convey that steps were taken under various laws while they were taken only under the Bombay Prohibition Act and therefore the subjective satisfaction in that case was found to be based on consideration of an imaginary circumstance and therefore it failed. It must be stated that the aforesaid decision prima facie supports the view which is canvassed by Mr. Kapadia. But as we will show hereafter on the facts of this case the ratio of that decision will be of no avail to the petitioner.