HIREN RATILAL JARIWALA Vs. COMMISSIONER OF POLICE SURAT

JUDGEMENT

(1.) The petitioner who is detained under the provi- sions of the Prevention of Anti-Social Activities Act 1985 (the Act for short) has brought in challenge the detention order dated 25-7-1989 passed by the Commissioner of Police Surat

(2.) The submission of the learned Advocate for the petitioner is that while considering the question of less drastic remedy by way of externment of the petitioner under Sec 56 of the Bombay Police Act one vital fact has not been considered by the detaining authority presumably because it was not placed before him by the sponsoring authority and that fact is that even in past his own office had initiated externment proceedings against the petitioner for has alleged bootlegging activities and other nefarious activities on 15-10-1987. That these proceedings had culminated into order of externment which ultimately was set aside in appeal by the State Government on 25-4-1988. That from 15-10-1987 to 25-4-1988 not a single prohibition case is registered against the petitioner. This showed that pendency of externment proceedings had corrective or fear effect of the petitioner and he had suspended his alleged bootlegging activities during that period. If this circumstance had been considered by the detaining authority there was possibility of his subjective satisfaction getting tilted in favour of the detenu to the effect that even on this occasion the detaining authority could have subjectively come to the conclusion that instead of preventively detaining him less drastic remedy of externment proceedings could have served the purpose even on this occasion. That this circumstance is vital circumstance which was not considered by the detaining authority and hence the subjective satisfaction has got vitiated.

(3.) In reply to this contention taken in the petition the detaining authority has filed his affidavit-in-reply. In para 8 of the said affidavit It has been stated that previous action of externment of the detenu is not taken into consideration. It is not stated in the grounds of detention also. The action by way of externment of the detenu would be insufficient to Beep the detenu out of harms way for the reasons mentioned in the grounds of detention. Therefore it is not the case of the respondent that this circumstance was considered by him or that it was not known to him. But according to him it is just not considered. Now it cannot be gainsAid that this circumstance was in favour of the detenu. It was a vital circumstance which had possibility of tilting the balance underlying the subjective satisfaction of the detaining authority one way or the other. As this vital circumstance is not admittedly considered by the dEtaining authority and as it could not urged that it was never known to him as the earlier externment order was issued by his own office ratio of the Supreme Court judgment in the case of Ashadevi v. K. Shivraj AIR 1979 SC 447 gets squarely attracted. Tulzapurkar J. in that case speaking for the Supreme Court has made the following pertinent observations: