NAJUDDIN KARIMUDDIN SHAIKH Vs. COMMISSIONER OF POLICE SURAT

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution the petitioner-Najuddin Karimuddin Shaikh has brought in challenge order of his preventive detention passed against him by the Commissioner of Police Surat City Mr. M. L. Kalna on 15-9-1988 in exercise of the powers under sub-sec. (1) of Sec. 3 of the Gujarat Prevention of Anti- Social Activities (Amd.) Act 1986 (`PASA Act for short). He has also been supplied with the grounds of detention of even date when he was taken in detention pursuant to the impugned order.

(2.) At the time of final hearing of this petition various contentions were canvassed by the learned Counsel for the petitioner in support of the petition. However ultimately he highlighted one contention which in our view goes to the root of the matter and which makes it unnecessary for us to refer the other contentions. The contention which was vehemently canvassed for our consideration was to the effect that the detaining authority while passing the impugned order of detention bad relied upon the alleged involvement of the petitioner detenu in bootlegging activities for the period from 1983 to 1987 for which activities the detenu was already detained earlier by the order dated 21-2-1987 and which detention order was quashed by this Court on 24-8-1987. Consequently this materiel could not have been pressed in service on the present occasion by the detaining authority for treating the detenu as bootlegger who has disturbed the public order and only on this ground subjective satisfaction on which the impugned order of detention is passed has got vitiated and hence the order of detention is liable to be quashed.

(3.) So far as this contention is concerned strong reliance is placed on a recent decision of the Supreme Court in the case of Chhagan Bhagwan Kahar v. M. L. Kalna & Ors. in a Writ Petition (Civil) No. 61 of 1989 decided by B. C. Ray & S. Ratnavel Pandian JJ. on 16-3-1989 reported in 1989 (1) Judgments Today (SC) 572: (AIR 1989 SC 1234). Before referring to that judgment it is necessary to refer to the relevant grounds on the basis of which the impugned order of detention has been passed. They are at Annexure `B to the petition. First paragraph thereof reads that the detenu was allegedly keeping in his possession country-made as well as English liquor and was selling the same at his dens situated at Udhana Road No. 6 and Udhana Road No. 9 and that for that purpose he was transporting the liquor on large scale. He had no licence for such activities. That from 1983 to 1988 the detenu was involved in all 15 prohibition cases under the Bombay Prohibition Act. Out of those cases 12 cases were pending trial while three cases were under investigation. The details of those cases were furnished by way of Annexure-41 to the grounds of detention. When we turn to Annexure A to the grounds of detention we find listed therein 15 criminal cases filed against the detenu from time to time from 17-6-1983 to 12-9-1988. Grounds of detention also recite in para-3 sub-para-4 that even though earlier steps were taken against the detenu they had no corrective effect on him and be was therefore required to be detained once again by an order dated 21-2-1987 under the PASA Act and he was kept in Broach Sub-Jail. He had challenged said detention order in the High Court being Spl. Cri. application No. 319 of 1987 which was allowed after healing by the High Court on 24-8-1987 and he was released from detention. Even thereafter he had continued his bootlegging activities and was again involved in four prohibition cases. It is then recited that on 11-6-1983 the detenu was involved in first prohibition case and he was released on bail in that case and thereafter on number of occasions till 12-9-1988 he was arrested in as many as is prohibition cases. In para-4 of the grounds of detention it is then recited that having considered the aforesaid evidence against the detenu carefully and in the light of the material in pars-1 of the rounds of the detention it was ascertained that the detenu was keeping in his possession country made liquor as well as English wine and was selling the same in public by running dens and was also transporting liquor. He was involved in so many prohibition cases and he was a known bootlegger. Along with these grounds of detention the detenu was also supplied with the relevant material supporting the grounds of detention. Copies of First Information Reports concerning various Criminal Cases listed at Sr. Nos. 1 to 15 in the statement of criminal cases referred to in para-1 of the grounds were also supplied to the detenu along with the grounds of detention. The detenu was also supplied copy of the grounds of detention supporting his earlier detention order dated 21-2-1987 as also the copy of the earlier detention order. Along with grounds of detention as supporting material judgment of the High Court quashing earlier detention order was also supplied to him. The same is rendered by the Division Bench of this Court (Coram: D. II. Shukla & P. M. Chauhan JJ ) on 24-8-1987 in Spl. Criminal Application No. 319 of 1987. On a comparison of the earlier grounds of detention on which the order of detention dated 21-2-1987 was passed with the present grounds of detention it is seen that the criminal cases listed at Sr. Nos. 1 to 11 in the present statement of prohibition cases on which the detenu was involved were the very same cases on which the earlier order of detention dated 21-2-1987 was passed against the detenu. In the present case fresh material relied on is by way of Criminal Cases at Sr. Nos. 12 to 15 which are four additional cases under the Prohibition Act for a period between 3 to 12-9-1988.