DHIRUBHAI CHHANABHAI RATHOD Vs. COMMISSIONER OF POLICE SURAT

JUDGEMENT

(1.) The petitioner has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act 1985 (for short the act) on the allegations that he is running liquor den in Gotalavadi Area of Surat and when ordinary citizens passed by the liquor den he used to harass and beat them. Two such incidents one of 7/07/1988 and another of 22/07/1988 have been referred to in the grounds of detention supplied to the detenu. It is also alleged in the grounds of detention that there were 15 criminal cases against the petitioner under the provisions of Bombay Prohibition Act 1949 on the allegation that he either had stored or was selling prohibited liquor. The cases instituted against the petitioner which are pending for trial are between the period of 23/04/198 7/05/1988 The order of detention is dated 6/08/1988 and it has been served upon him on the same day. The detaining authority came to the conclusion that the activity of the detenu as a bootlegger was prejudicial to the maintenance of public order and it was necessary to preventively detain him with a view to restrain him from acting in similar type of activities. Hence the order of detention.

(2.) The petitioner has challenged the legality and validity of the order of detention by filing this petition on several grounds. In the facts of the case it is not necessary to refer to all the grounds of challenge in as much as the petition is capable of being disposed of on the sans of averments and admission made in the affidavit-in-reply sworn by the detaining authority. The relevant part of the affidavit-in-reply which is in para 3 reads as follows: I submit that the impugned order is passed by me after considering all the relevant facts circumstances and antecedents and I had carefully considered the material which is already supplied to the petitioner and which has been produced at annex. C to the petition and on careful consideration of the same and other relevant material I was convinced that the petitioner indulges in the antisocial activities and is a bootlegger and therefore it was not possible to prevent the activities of the petitioner by any other measures. The learned counsel for the petitioner contends that over and above the material supplied to the petitioner the detaining authority has also taken into consideration other relevant material for arriving at the satisfaction as regards the necessity to preventively detain the petitioner. In view of this contention we requested the learned counsel for the respondents to explain as to what other relevant material has been taken into cosideration and whether the same has been communicated to the petitioner-detenu. The learned counsel for the respondents has not been able to explain to us as to what other relevant materials have been taken into consideration by the detaining authority and as to whether the same has been communicated to the petitioner-detenu. In this view of the matter and particularly when there is no explanation as regards the averments made in the affidavit-in-reply there is clear violation of the provisions of section 9 of the Act as well as infraction of provisions of Art. 22 of the Constitution of India. As per the provisions of S. 9 of the Act the detenu is required to be communicated all the grounds on which the order of detention has been made and he is required to be afforded an earliest opportunity of making representation against the order of detention. Art. 22(5) of the Constitution also inter alia provides that the detenu is required to be communicated the grounds on which the order of detention has been made and is required to be afforded an earliest opportunity of making representation against the order of detention. Supplying of grounds of detention includes documents statement or other materials relied upon and they must also be communicated to the detenu (see AIR 1980 SC page 1983). The affidavit-in-reply sworn by the detaining authority himself clearly discloses that the detaining authority has taken into consideration other relevant material. This has not been supplied to the detenu nor there is any satisfactory explanation for this averment. Thus there is infraction of safe-guards provided under the provisions of Art. 22(5) of the Constitution of India and the petitioner-detenu has been deprived of knowing the grounds and making effective representation against the order of detention.

(3.) In the result the petition is required to be allowed and the same is hereby allowed. The continued detention of the petitioner-detenu is declared to be illegal and void. It is directed that the petitioner shall be released forthwith if not required in any other case. Rule made absolute accordingly.