NAZIMKHAN JILEDARKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Commissioner of Police, Baroda, passed an order on 9/02/1999, in exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("PASA Act" for short), detaining the petitioner under the provisions of the said Act. The grounds of detention indicate that an offence vide Crime Register No.II-3/98 came to be registered against the petitioner for an offence punishable under Section 25(1)(a) and 29 of the Arms Act. Statements of three witnesses came to be recorded to indicate that the petitioner was involved in illegal activities and used force to pursue those activities which, ultimately, resulted into disruption of the public order. The detaining authority recorded a satisfaction after verifying the statements of those witnesses that they, in fact, suffer from fear of the petitioner and that their identity needs to be not disclosed in exercise of powers under Section 9(2) of the PASA Act and, ultimately, passed the order of detention holding that the petitioner is a 'dangerous person' as defined under the PASA Act.

(2.) The petitioner has challenged the detention on various grounds by preferring this petition under Article 226 of the Constitution. It is contended by the petitioner in the petition that the detaining authority has mechanically exercised the powers under Section 9(2) of the PASA Act, which has affected the right of the petitioner of making an effective representation guaranteed under Article 22(5) of the Constitution. Another ground that is raised by the petitioner in the petition is that the order passed by the detaining authority is without application of mind and is of a mechanical nature. The authority must be subjectively satisfied about each of such witnesses and their identity whereas in the instant case, the detaining authority has not verified statements of one of the witnesses and the order is, therefore, bad in law and the same may be quashed and set aside by allowing this petition.

(3.) Mr. Joshi appearing for Mr. B.S. Patel, learned advocate for the petitioner has emphasized and relied on the ground of improper exercise of powers under Section 9(2) of the PASA Act on account of non-examination and verification of the statement of one of the witnesses. He submitted that on this ground alone the petition deserves to be allowed.