MUKESH KANAIYALAL LUHA SINDHI Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) Heard learned Advocates for the respective parties.

(2.) . The present petition, preferred under Art. 226 of the Constitution of the India, is directed against the order of preventive detention dated 13th August, 1998 made by the District Magistrate, Panchmahals, under the powers conferred upon him under sub-sec. (2) of Sec. 3 of the Gujarat Prevention of Anti-Social Activities Act (hereinafter referred to as 'the Act'). The order was executed on the same date. The petitioner has been thus detained under the Act since 13/08/1998. Pending this petition, on 7/09/1998, the petitioner had, through his learned Advocate, made a representation to the State Government against the order of detention and had also asked for a copy of the search and seizure panchnama in respect of the offence registered as C.R No. 160 of 1998 in Godhara Taluka Police Station against the petitioner and two others. The said representation was rejected by the State Government and the order was communicated to the petitioner under the communication dated 11/09/1998.

(3.) . Amongst the other grounds, the validity of the impugned order of detention has also been challenged on the ground that the search and seizure panchnama in respect of an offence pending investigation is a vital document and a detenu is entitled to have a copy of the said document so as to enable him to make an effective representation against the order of detention. In absence of such panchnama, the detenu's constitutional right to representation is adversely affected and the order of detention would, therefore, be vitiated. In support of this contention, Mr. Dave, the learned Advocate appearing for the petitioner, has relied upon the decision of this Court in the matter of Amrutbhai Prabhatbhai Saraniya v. Commissioner of Police, Baroda City and Ors. (Special Criminal Application No. 2071 of 1993 decided on 31/08/1994 : Coram : Messrs. Justice B. S. Kapadia and N. J. Pandya). In the said matter a similar contention was raised before the Bench and the contention was contested on the ground that panchnama in question was not relied upon by the Detaining Authority for arriving at the subjective satisfaction in respect of the detenu's nefarious activities and his being a dangerous person, as defined in the Act. While dealing with the said contention, the Bench held that, "the panchnama in a pending investigation particularly in a case under the Bombay Prohibition Act has its own significance ... ... It necessarily precedes the F.I.R. and discloses the offence primarily in the manner described in the panchnama.... But the F.I.R. itself is clear on the point and in our opinion, it is definitely referred to so far as the F.I.R. is concerned and in fact, that would form the basis of F.I.R.. In the background of the aforesaid details, in our opinion, when the contention advanced on behalf of the detenu ... .... nonsupply of the said document in our opinion, would prejudice the detenu's right of making an effective representation."