AKASHYABALA JITENDRAKUMAR RAMI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India the petitioner-detenu has brought in challenge the detention order No. PCB/DTN/PASA/14/89 dated 19-3-1989 passed by the Commissioner of Police Ahmedabad City under the provisions of Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act 1985 (hereinafter to be referred to as the PASA Act).

(2.) The petitioner-detenu was served with the order of detention on 19-3-1989 along with the grounds of detention. Said order was confirmed by the Government under sub-section (1) of Section 13 of the Act by its order dated 25-4-1989. The petitioner has not annexed the deten- tion order with the petition but the order of confirmation passed by the State Government dated 25-4-1989 has been annexed as Annexure-A to the petition. Grounds of detention are also annexed to the petition. It has been alleged in the grounds of detention that the petitioner was involved in the activities of bootlegging and was involved in selling foreign liquor and is known as prohibition bootlegger and thus is a dangerous person and is involved in the activities prejudicial to the maintenance of law and order and public peace. It has been further alleged that three criminal cases being Cri. Case No. 250 for the offences punishable under Sections 66 65 and 81 of the Prohibition Act Cri. Case No. 111/X8 for the offences punishable under Sections 66(b) and 65(a) of the Prohibition Act and Cr. No. 104/89 for the of- fences punishable under Sections 66(b) and 65(a) of the Prohibition Act were filed against the petitioner. It is also alleged that one Cri. Case being Cri. Case No.117/89 for the offences punishable under Sections 323 506(1) 323 427 114 of the I. P. Code was also filed against the petitioner- detenu. In the grounds of the detention the detaining authority has also referred to previous order of detention passed against the detenupetitioner under the provisions of the PASA Act being Order No PCB/DIN/PASA/274/85 dated 7-7-1985 it has been also mentioned that the said order was revoked by the Government by its order dated 19-7-1985 The petitioner was supplied copies of all the documents including the grounds of detention and detention order dated 7-7- 1985. After considering all these material on record the detaining authority having arrived at subjective satisfaction passed the impugned order of detention dated 19-3-1989 against the petitioner-detenu and the petitionerdetenu was detained on the same day pursuant to the said order.

(3.) The impugned order of detention has been challenged by the petitioner-detenu on various grounds In the petition the learned Counsel for the petitioner has contention that the order of detention is ex facie bad-in-law and deserves to be quashed and set aside on ground No. x(a) in the petition. It has been submitted by the learned Counsel that the impugned order of detention passed against the detenu under the PASA is bad and illegal as per the judgment rendered in the case of Chhagan Bhagwan Kahar reported in 1989(1) SC Judgment Today 572 it is submitted that it is clear from the grounds of detention that the detaining authority has relied upon the previous grounds of detention under PASA and the order of detention passed against the detenu dated 7/07/1985 Since the detaining authority has relied upon the said order of detention and the grounds of detention they have also supplied the copy of the same to the detenu. The said order of detention has been revoked by the Government on the advice of the Advisory Board and the order of revocation was passed as mentioned in the present grounds of detention and from that the Detaining Authority has come to the conclusion that detenu has continued his activity in spite of the order passed dated 7-12-1985 after he was released and that has formed basis of the subjective satisfaction of the Detaining Authority. It is submitted that once the order of detention is revoked on the advice of the Advisory Board or in any other manner or if the same is quashed by the High Court then the previous grounds of detention cannot be taken into consideration and they cannot form the basis of subjective satisfaction. The fact that the de- tention order has been based on the previous order of detention and grounds of detention is clearly admitted by the Detaining Authority itself in affidavit-in-reply Thus the order of de- tention has come to an end by revocation the said order cannot be taken into consideration either as a whole or in pan even along with the fresh grounds of detention for drawing subjec- tive satisfaction to pass fresh order because once the order is revoked it nullifies the entire order and therefore it cannot form the basis of subjective satisfaction In short the detaining authority could not have taken into consideration the order and the grounds of detention which have been nullified by the order of revocation Thus the satisfaction of the detaining authority is vitiated by taking into consideration totally irrelevant fact of the previous detention order and the grounds of detention and basing it on the same