AKASHYABALA JITENDRAKUMAR RAMI v. STATE — 1989 DIGILAW 163 (GUJ)

V. H. BHAIRAVIA, J. ( 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of the PASA Act being Order No PCB/din/pasa/274/85 dated 7-7-1985 it has been also mentioned that the said order was revoked by the Government by its order dated 19-7-1985 The petitioner was supplied copies of all the documents including the grounds of detention and detention order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. 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 ( 4 ) IN reply to the contention of the petitioner raised in the petition the respondent No. 2 has filed two affidavits dated 8-9-1989 and 25-9-1989 respectively. In the affidavit dated 8-9- 1989 in para-3 it has been stated that I say that I was satisfied with the material placed before me and after full application of mind the order of detention was passed I say that after the order of detention was served on the detenu on the very day i. e. on 19-3-1989 by the P. S. I. Naranpura Police Station Ahmedabad. . . . I further submit that the grounds mentioned in the grounds of detention were based on material and the detenu was duly served with the said grounds and other material viz. from pages 1 to 74 and the petitioner has also acknowledged the same before the jail authority. . . . . . . . . I say that it is also mentioned in the grounds of detention that ear- lier in the year 1985 viz. from pages 1 to 74 and the petitioner has also acknowledged the same before the jail authority. . . . . . . . . I say that it is also mentioned in the grounds of detention that ear- lier in the year 1985 viz. 7-7-1985 the detenu was detained by the then Commissioner of Po lice B. K. Zha under the Provisions of the Act and the said order of detention was revoked by the State Government as per the order dated 19-7-1985. I say that in spite of the order of deten- tion which was passed in July 1985 from the material it amply establishes that the detenu had continued his prejudicial activities and cases under the Prohibition Act were registered. In para-3 of the reply affidavit it has been further stated that however I submit that as staled earlier the order of detention was passed against the detenu considering the material placed before me and from the said material I was satisfied that the detenu was acting prejudicially to the maintenance of public order. ( 5 ) IN reply to the amended ground z (a) the respondent filed affidavit dated 25-9-1989 wherein it has been stated in para-2 that with reference to ground - x (a) of the petition I say that the contention raised by the petitioner is no well-founded. I say that I had passed the im- pugned order of detention against the detenu with regard to the cases registered against the detenu as mentioned in the grounds of detention. I further submit that with regard to the passing of earlier order against the detenu on 7/07/1985 is reflected in the grounds of detention with regard to the past history of the present detenu and for the purpose of passing the impugned order of the detention the said material is not relied upon by me. I say that as reference is given in the grounds of detention with regard to the passing of detention order dated 7/07/1985 the petitioner detenu was supplied with the order of detention and the grounds of detention but the said grounds and the facts are not relied on by me for the purpose of passing of the impugned order of detention. ( 6 ) LOOKING to the averments made in the affidavit dated 25-9-1989 we find that there is improvement in what has been stated in the first affidavit filed by the respondent No. 2. In the first affidavit as staled above the detaining authority has clearly admitted that he relied on the material placed before him and after full application of mind the order of detention has been passed. He did not say that he only relied upon fresh material regarding criminal cases. In our view this improvement is an after thought and is made with a view to fill up the lacuna caused in the first affidavit dated 8-9-1989. The fact remains that the detaining authority has consid- ered previous detention order and has also supplied copy of the same order along with the grounds of detention to the petitioner-detenu. ( 7 ) THE learned Counsel for the petitioner in support of his argument that when the Court has quashed the order of detention the grounds of the said order should not be taken into consid- eration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order it nullifies the entire order relied on the decision of the Supreme Court in the case of C. B. Kahar v. N. L. Kalna reported in AIR 1989 SC 1235. It has been observed by the Supreme Court in para-12 of the said judgment as under:it emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prorogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order. In para-15 of the said Judgment the Supreme Court observed as under:. . . . . . . . . . . . . . . In para-15 of the said Judgment the Supreme Court observed as under:. . . . . . . . . . . . . . . . . . Incidentally it was brought to our notice that a copy of the earlier grounds of detention was also one of the documents furnished to the detenu in the present case which confirms the fact that the detaining authority has considered the earlier grounds of detention along with other docu- ments for drawing his requisite subjective satisfaction for passing the impugned order. In other words the earlier grounds of detention dated 2-1-1987 quashed by the High Court was one of the material documents concerned by the detaining authority in drawing his subjective satisfaction. Therefore we hold that this order of detention is vitiated on the ground that the detaining authority has taken into consideration the grounds of earlier detention order along with other materials for passing this impugned order. Hence the order is liable to be set aside. In light of the observations of the Supreme Court in our opinion there is much force in the submission of the learned Counsel for the petitioner that the detaining authority has relied on the material and order of the detention along with grounds which was passed earlier and was revoked. Therefore in our opinion this case is fully covered by the judgment of the Supreme Court in the case of C. B. Kahar (supra) and hence this petition is bound to succeed. ( 8 ) THIS petition is therefor allowed. The impugned detention Order No. PCB/tdn/pasa/ 14/89 dated 19-3-1989 passed by the Commissioner of Police Ahmedabad City and confirmed by the Order No. SB-III/pas/1189/44 dated 25-4-1989 passed by the Section Officer Home Department (Spl.) Sachivalaya Gandhinagar is hereby quashed and set aside. The Respondents are directed to set the petitioner-detenu at liberty forthwith if not required to he detained in any other matter. Rule is made absolutely accordingly. .