Harivadan Modi v. District Magistrate, Bharuch — 1988 DIGILAW 149 (GUJ)

KAPADIA, J. ( 1 ) THE present petition is filed by the petitioner, who is detained by the order of detention dated 1-3-1988 passed by the District Magistrate, Bharuch, under the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as the Act) on his being satisfied with regard to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it was necessary to pass order of detention. In pursuance of the said order he was detained on 2-3-1988 at about 9. 30 a. m. He was also served with the grounds of detention dated 1-3-1988 on the same day. ( 2 ) ON perusal of the ground it appears that six prohibition cases being C. R. Nos. 1979/86, 1153/86, 323/87, 422/87, 493/87 and 642/87 all of Ankleshwar Police Station, have been filed against him. So far as the first case is concerned, a raid was conducted by the police at the residence of the petitioner on 11-7-86 and 16 litres of country liquor was taken possession of. So far as the second case is concerned, a raid was conducted by the police on 2-8-1986 and 35 bottles of Brandhy were taken possession of from the petitioners residence. So far as the 3rd case is concerned, a raid was conducted by the police at the petitioners residence on 25-2-1987 and 15 litres of country liquor was taken possession of from the petitioners place. In the fourth case, a raid was conducted by the police on 12-3-1987 and 15 litres of country liquor was taken possession of from the petitioners place. In the fifth case a raid was conducted by the police on 21-3-1987 and five litres of country liquor was taken possession of from the petitioners place. So far as the sixth case is concerned a raid was conducted on 22-4-1987 at the residence of the petitioner and 15 litres of country liquor was taken possession of from the petitioners place. There are statements of four witnesses, but it is not necessary to consider all of them. So far as the sixth case is concerned a raid was conducted on 22-4-1987 at the residence of the petitioner and 15 litres of country liquor was taken possession of from the petitioners place. There are statements of four witnesses, but it is not necessary to consider all of them. The witness No. 3 Dhulabhai C. Vasava has stated in his statement which was recorded on 20-10-1987 that the petitioner met him about six months back and told him as to why he was giving false evidence as Panch in the prohibition cases filed against the petitioner and so saying he also gave him threat to kill him. On the witness asking him not to be angry the petitioner gave him 2 to 3 slaps on account of which the people of the locality ran scattered. ( 3 ) ON the basis of the aforesaid six cases as also statements of the witnesses the detaining authority came to the conclusion that the petitioner was a bootlegger doing illegal activities of selling liquor and that he was contravening the provisions of the Bombay Prohibition Act. In spite of the police raid and the criminal cases filed against him he had continued his such activities of dealing with illicit liquor and had committed offence under the Bombay Police Act. On the basis of the aforesaid facts the detaining authority was satisfied on the point that the petitioner was doing illegal business of liquor; that he was a headstrong person and was creating an atmosphere of terror in the minds of public of Ankleshwar. He also drew the inference on account of the illegal business of the petitioner that there is possibility of communal riots. On the basis of the aforesaid conclusions the detaining authority was satisfied that there is a possibility of disturbance to the public order in the entire locality and therefore, with a view to preventing him from doing any such activity, it was necessary to detain the petitioner and accordingly, the detaining authority in exercise of powers conferred on him by Sub-Sec. (2) of Sec. 3 of the Act has passed the aforesaid detention order against the petitioner. ( 4 ) SEVERAL grounds have been raised in the petition for challenging the legality and validity of the detention order and further one more ground was added by way of amendment to the petition. ( 4 ) SEVERAL grounds have been raised in the petition for challenging the legality and validity of the detention order and further one more ground was added by way of amendment to the petition. ( 5 ) AT the time of hearing Mr. H. C. Patel, learned Advocate for the petitioner has pressed the following grounds : (1) That the detaining authority has not applied its mind and/or was not conscious of the less drastic remedy and therefore, there is no application of mind on the part of the detaining authority at the time of passing, the order of detention; (2) That there is delay in passing the detention order and, therefore, on that ground also the order of detention should be quashed and set aside; (3) That the detenu was released on bail but the fact of releasing the petition on bail has not been considered by the detaining authority and, therefore, as the relevant aspect was not present in the mind of the detaining authority at the time when the detention order was passed the order of detention should be quashed; (4) That there is no data and/or material for drawing an inference of possibility of communal riot on account of bootlegging activity of the petitioner and, therefore, also the order of detention should be quashed. ( 6 ) WITH regard to the point of not considering the less drastic remedies by the detaining authority it is submitted on behalf of the petitioner that the petitioner can be prosecuted for the prohibition cases and that it will be a good remedy for preventing him from carrying on bootlegging activities in future. It is also submitted that bond under Sec. 93 of the Bombay Prohibition Act should have been taken from the petitioner for preventing him from doing such illegal activities in future. Similar argument was advanced for bond under Sec. 107 of the Criminal P. C. It is also submitted that externment proceedings either under S. 55, 56 or 57 of the Bombay Police Act should have been initiated against the petitioner, but the detaining authority has failed to consider the aforesaid facts and has passed the order of detention in a mechanical fashion without any application of mind. The said point has been raised in the para-11 of the petition. The said point has been raised in the para-11 of the petition. ( 7 ) IN reply to the said point the said point the detaining authority has in para 14 of the affidavit-in-reply has stated that there is no substance in raised in para 11 of the petition. It is clearly stated by the detaining authority that on the basis of the material he was fully satisfied that other alternative remedies under the ordinary law were insufficient to restrain the petitioner from carrying on his prejudicial activity disturbing the maintenance of public order. He has further stated that he was satisfied that unless and until the provisions contained in the Act were resorted to, it was not possible to prevent the petitioner-detenu from carrying on his prejudicial activities in future. After denying the allegations made in the petition the detaining authority has specifically stated that while passing the impugned order of detention he has fully considered the alternative remedies available under the ordinary law of land and that externment proceedings under the Bombay Police Act though temporarily can be said to be an extra-ordinary proceeding but since in externment proceedings unless the proposed externee was issued notice and the witnesses were examined and arguments were heard, no such order can be passed without consuming time. Appeal can be filed and stay can be obtained. The detaining authority has also given the reason that during the proceedings the person like the petitioner can clandestinely carry on his prejudicial activities disturbing the public order and that he was alive to the aforesaid aspects and, therefore, he has not resorted to those remedies and has resorted to the remedy under the Act. He further stated that it has been done after full application of mind. ( 8 ) LOOKING to this detailed affidavit-in-reply on the point of less drastic remedies, it cannot be said that the detaining authority was not alive to the less drastic remedies and that he has not considered the same. On perusal of the file which was placed in our hands for our satisfaction, we could see that the aforesaid aspect was considered in general and, therefore, it cannot be said that before passing the order of detention the less drastic remedies were not considered by the detaining authority. On perusal of the file which was placed in our hands for our satisfaction, we could see that the aforesaid aspect was considered in general and, therefore, it cannot be said that before passing the order of detention the less drastic remedies were not considered by the detaining authority. In view of the factual aspects of the matter and the specific averments made in the affidavit-in-reply supported by the original file, we are unable to agree with the contention raised on behalf of the petitioner. ( 9 ) THE second point raised by the petitioner is regarding the delay in passing the order of detention which is raised in para 13 of the petition. According to the petitioner the last case in which he is alleged to have been involved had taken place on 22-4-1987 and immediately thereafter no steps have been taken to detain the petitioner, but after a period of six months statements of four witnesses were recorded in the month of October 1987 and that there is great delay in recording such statements. It is also submitted on behalf of the petitioner that even after recording the statements of four persons for a period of four months the detention order was not passed, and therefore, order of detention is mala fide and without application of mind. ( 10 ) REPLY to this contention is given by the detaining authority in para-17 of the affidavit-in-reply wherein it is pointed out that the last case against the petitioner was filed on 22-4-1987 and thereafter also the petitioner was engaged in his illegal activities to cell the country liquor and he is a very clever person and he escapes from the incidents. It is also stated in the affidavit in reply that statements of four persons recorded in the month of October 1987 are independent witnesses. On the point of delay in recording the statements of these four witnesses it is explained that due to other investigation there was delay in recording the statements of said persons though the petitioner was under continuous watch by the police. It is specifically stated by the detaining authority that the order passed by him is not mala fide. On the point of delay in recording the statements of these four witnesses it is explained that due to other investigation there was delay in recording the statements of said persons though the petitioner was under continuous watch by the police. It is specifically stated by the detaining authority that the order passed by him is not mala fide. ( 11 ) ON this point it may be stated that in the case of Rajendrakumar v. State of Gujarat, AIR 1988 SC 1255 , the Supreme Court has laid down the test for considering the point of delay at the time of passing the order of detention. It is clearly pointed out in the said judgement that delay in considering the representations as required under Art. 22 (3) of the Constitution is different from delay in passing the order of detention. It is unwarranted to set aside the detention order on the ground of delay unless the court finds that the grounds are stale or illusory or that there is no nexus between the grounds and the impugned order of detention. In view of this the argument that the detention order is bad on the ground of delay is unwarranted. In the present case it cannot be said that the grounds which are shown against the petitioner in the eases which are filed against him wherein large quantities of liquor were sized at the time of police raids were stals or illusory or that there is no nexus between the grounds and the detention order. When that is so, the detention order cannot be said to be bad or mala fide on that count. In view of the affidavit-in-reply filed by the detaining authority on this point as also the principles laid down in Rajendra Kumars case, we are unable to accept this contention raised on behalf of the petitioner on the point of delay in passing the order of detention. ( 12 ) THE third point that is raised on behalf of the petitioner is regarding the release of the petitioner-detenu on bail. This point has been raised in para-9 of the petition. ( 12 ) THE third point that is raised on behalf of the petitioner is regarding the release of the petitioner-detenu on bail. This point has been raised in para-9 of the petition. It is submitted on behalf of the petitioner that the cases were non-bailable cases and the petitioner has been released on bail in all the aforesaid cases by the competent courts; that when the competent court releases an accused person on bail, the detaining authority must consider as to why the person is required to be detained on the very charge on which he has been released on bail by competent court; that provisions of preventive detention should not be used to clip the wings of an accused person, who has been released on bail by a competent court for the very charge for which he has been prosecuted and that the material and relevant aspects have not been placed before the detaining authority and the order of detention has been passed without application of mind. ( 13 ) ON this point affidavit-in-reply has been filed by the detaining authority vide para-12 of the affidavit-in-reply wherein it is clearly stated, after denying the allegations made in the petition, that he was satisfied that ordinary law of land is far inadequate and was not capable to take care of the petitioner-detenu from acting prejudicial to the maintenance of public order. It is also stated by the detaining authority that it is because of this only he has resorted to extraordinary remedy under the Act. ( 14 ) IN this connection Mr. H. L. Patel, the learned Advocate for the petitioner has relied on certain observations made in this courts judgement in Special Criminal Application No. 585 of 1987 decided on Dec. 17, 89 (Coram : A. P. Ravond and B. S. Kapadis ). In the said case judgements in the case of Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334 and Anant Sakharam Raut v. State of Maharashtra, AIR 1987 SC 137 were cited and considered. After considering the said judgements it was observed by this very Bench that at any rate it should be shown that these aspects were present in the mind of the detaining authority. After considering the said judgements it was observed by this very Bench that at any rate it should be shown that these aspects were present in the mind of the detaining authority. While considering the argument on behalf of the respondents in the said case that the release of the petitioner detenu on bail was not a relevant circumstance at all, it was observed in para 8 of the said judgement as under :"in essence, by advancing the aforesaid argument, the learned counsel for the respondents requests us to put the logic in reverse. The argument comes to this. Because the detaining authority took into consideration certain incidents which took place after the release of the petitioner detenu on bail it should be referred that the detaining authority was aware of the fact that he detenu was on bail. Such reverse logic cannot be accepted. If this argument is accepted, each and every relevant circumstance which is otherwise required to be taken into consideration and which is held to be material and vital for arriving at necessary satisfaction but excluded from consideration can be said to have been taken into consideration by showing that subsequent incident has been considered. Such a course would be neither proper nor reasonable and hence the argument is not accepted" ( 15 ) IT may be stated that the aforesaid observations are made keeping in mind the facts of the said case. In the present case the detaining authority has clearly stated in his affidavit-in-reply that he was satisfied that ordinary law of the land is inadequate and was not acceptable or insufficient to take care of the petitioner-detenu from acting prejudicial to the maintenance of public order and on his being satisfied as a last resort the order of detention was passed. In support of what is stated in para-13 of the affidavit-in-reply if we look into the grounds for detention it can be seen that the raids were conducted by the police on 11-7-86, 2-8-86, 25-2-87, 12-3-87, 21-3-87 and 22-4-87. As observed in the aforesaid judgement of this Court as also in several judgements of the Supreme Court it is to be borne in mind that a person is to be detained as a preventive measure and not as a punitive measure and that is the very object of detaining a person was mentioned under Sec. 3 of the Act. As observed in the aforesaid judgement of this Court as also in several judgements of the Supreme Court it is to be borne in mind that a person is to be detained as a preventive measure and not as a punitive measure and that is the very object of detaining a person was mentioned under Sec. 3 of the Act. Therefore, on the basis of the data of past material regarding the activity of the petitioner detenu a reasonable prognosis is to be made about his future activities. When number of cases are filed against him and when he continues his activities it is clear that ordinary remedies of prosecution as well as less drastic remedies of arresting him and thereafter opposing the prayer for releasing him on bail or that of applying for cancellation of bail would no be sufficient to prevent him from doing such activities in future. The detaining authority has, therefore, rightly applied his mind on the point that remedies under ordinary law are not adequate and sufficient for preventing him from doing such illegal activities. When that is so, the observations made in the aforesaid judgement of this Court could not be applicable to the facts of the present case, particularly when those observations were made in the peculiar facts and circumstances of the case. ( 16 ) SPECIAL Criminal Application No. 585 at 1987 referred to hereinabove has been decided by this very Bench. In that case the detenu was considered to be a dangerous person as defined under the provisions of the Act. In view of the decision of the Supreme Court in the case of Vijay Narain Singh (1984 Cri LJ 909) (supra) great caution has to be exercised by the Court when a person is sought to be detained on the basis of the charge for which he has to be tried by a competent court. Such would not be the case in cases of persons who are sought to be detained on account of their activity as "bootlegger". In cases of bootlegger all their activities which may have been made the basis for passing the order of detention would not be subject matter of trial by a competent criminal court. In overall view of the matter the observations made in that case have got to be confined to the facts of that particular case only. In cases of bootlegger all their activities which may have been made the basis for passing the order of detention would not be subject matter of trial by a competent criminal court. In overall view of the matter the observations made in that case have got to be confined to the facts of that particular case only. ( 17 ) IN fact, in view of the present decision of the Supreme Court in the case of Vijay Kumar v. Union of India, AIR 1988 SC 934 , the observations made by as in the aforesaid case if construed as applicable generally in all cases, the same cannot be said to be good law. In the aforesaid case of Vijay Kumar before the Supreme Court, it was contended that the detenu was in detention on a charge under S. 135 of the Customs Act 1962 when the order of detention was passed and the detaining authority did not consider this aspect, and there was nothing to indicate to that effect. Repelling the aforesaid contention the Supreme Court referred to its earlier decision in the case of Smt. Shashi Aggarwal v. State of U. P. , AIR 1988 SC 596 wherein it was observed as follows :"the validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary. "thereafter in para-15 of the judgement the Supreme Court has culled out the proposition as follows :"in other words, two facts must appear from the grounds of detention, namely (1) awareness of the detaining authority of the fact that the detenu is already in detention, and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention. "the law laid down by the Supreme Court as stated above makes it clear that it should appear from the grounds of detention that the detaining authority was aware about the particular aspect of the case. That aspect may be regarding the detenu being already in detention or it may be regarding release on bail or cancellation of bail. "the law laid down by the Supreme Court as stated above makes it clear that it should appear from the grounds of detention that the detaining authority was aware about the particular aspect of the case. That aspect may be regarding the detenu being already in detention or it may be regarding release on bail or cancellation of bail. All that is necessary is that on overall consideration of the grounds of detention it should appear that the detaining authority was aware about this particular aspect of the case. It need not have been as stated expressly in the grounds of detention. But if it appears so on overall consideration of the grounds of detention that would meet with the requirement of law. This position has become abundantly clear by the decision of the Supreme Court in the case of Mst. L. M. S. Saleema v. B. B. Gujral, AIR 1981 SC 1191 . In para 9 of the judgement, after referring to the averments made by the detaining authority in affidavit-in-reply in that case, the Supreme Court has observed as follows :"the deponent may not have stated in express words that when he made the order of detention he also considered the question whether a prosecution under the ordinary criminal law would not be sufficient to prevent Bahaubar Maulana from engaging himself in the objectionable activities. But a reading of the entire counter-affidavit makes it clear that in the opinion of the detaining authority, prosecution or no prosecution, the only effective way of preventing Jahaubar Moulana from engaging himself in objectionable activities was to detain him. "thus the Supreme Court has held that such point may not have been stated in express words and yet on the entire reading of the affidavit and grounds of detention if it appears that detaining authority was aware about the particular point, the requirement of law is complied with. Supreme Court has nowhere stated that such point should have been stated in express words. ( 18 ) IN above view of the matter when we stated while deciding Special Criminal Application No. 585 of 1987 that reverse logic cannot be accepted, these observations have got to be confined to the facts of the case. It is not laid down as a general proposition that reverse logic cannot be resorted to in all cases. ( 18 ) IN above view of the matter when we stated while deciding Special Criminal Application No. 585 of 1987 that reverse logic cannot be accepted, these observations have got to be confined to the facts of the case. It is not laid down as a general proposition that reverse logic cannot be resorted to in all cases. Now in view of the aforesaid Supreme Court decision it is abundantly clear that it would be and it should be possible for the Court to make necessary inference from the overall reading of the grounds of detention. That which may be implied in the grounds of detention can very well be amplified and made explicit in the affidavit-in-reply by the detaining authority. As laid down by the Supreme Court it is not necessary that reference to particular aspect regarding release on bail or cancellation of bail or any other such relevant aspect should have been mentioned specifically and by express words in the grounds of detention. Even if it is not so stated specifically in affidavit-in-reply, on overall reading of only the grounds of detention, the Court can draw reasonable inference and can come to conclusion as to whether the detaining authority was aware about the particular point or not. In fact this is what has been done by the Supreme Court in the case of Vijaykumar v. Union of India, AIR 1988 SC 934 . In this view of the matter we do not find any merit in this point raised by the learned counsel for the petitioner. ( 19 ) THE last ground that has been raised on behalf of the petitioner is about the inference drawn by the detaining authority with regard to communal riot on account of petitioners activities, without any data for the same. ( 20 ) IT may be pointed out that the order of detention under S. 3 of the Act can be passed when the detaining authority is satisfied that with a view to preventing a person from acting in any manner prejudicial to the maintenance of public order it was necessary to pass such an order. Now the term "public order" has been given enlarged meaning in Sub-Sec. (4) of S. 3 of the Act. Now the term "public order" has been given enlarged meaning in Sub-Sec. (4) of S. 3 of the Act. This aspect was also considered by the Supreme Court in the case of Rajendrakumar (1988 Cri LJ 1775) supra) and in para 14 of the said judgement the Supreme Court after quoting from the order of District Magistrate about different purposes rolled up into one has observed as under : "in order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti-social activities. . . . . . for the purpose of public order and public peace and in the interest of State. . . . . In our opinion, these words added by way of superscription were wholly unnecessary. They were set out by the District Magistrate presumably because of total prohibition in the State. In future, it would be better for the detaining authorities acting under Ss. 3 (1) and 3 (2) of the Act, to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar. " . ( 21 ) IN above view of the matter it would not be necessary to mention as to whether communal riot was likely possibility on account of the activity of bootlegger and borrowing the words of the Supreme Court it was added by way of superscription which was wholly unnecessary. ( 22 ) IT can be viewed from different angle also. On account of bootlegging activities which the petitioner-detenu is carrying on in the locality of vegetable market in Ankleshwar City, different inferences can be drawn. Even if some of them cannot be sustained for any reason whatsoever that would not make the detention order illegal in view of the provisions of S. 6 of the Act which clearly says that such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds are vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever. It is clear that the word "ground" assumed larger meaning after the judgement of the Supreme Court in the case of Prakashchandra reported in AIR 1986 SC 687 . It is clear that the word "ground" assumed larger meaning after the judgement of the Supreme Court in the case of Prakashchandra reported in AIR 1986 SC 687 . Therefore, order of detention can be deemed to have been passed under the Act after being satisfied with regard to the remaining grounds or ground. ( 23 ) IN above view of the matter we are unable to accept this contention raised on behalf of the petitioner that the order is bad on the ground that there is no data for drawing inference about the possibility of communal riot on account of the bootlegging activity of the present petitioner. ( 24 ) ALL the contentions raised on behalf of the petitioner fail and therefore the petition deserves to be dismissed. Accordingly the petition is dismissed. Rule discharged. Petition dismissed. .