KISHOR AMBALAL JAISWAL v. STATE — 1992 DIGILAW 401 (GUJ)

K. J. VAIDYA, J. ( 1 ) RAMU @ Rabbar Ambalal Jaiswal on his coming to be detained as a Bootlegger u/s. 3 (2) of the Gujarat Prevention of Anti-Social Activities Act 1985 pursuant to the order of detention dated 15th June 1992 made by the Commissioner of Police Baroda his brother Kishor Ambalal Jaiswal xx xxx xxx Ambalal Jaiswal has filed this Habeas-corpus petition under Article 226 of the Constitution of India challenging the same inter alia praying for quashing and setting aside the said order of detention and releasing the detenu and setting him at liberty forthwith. ( 2 ) MR. S. H. Sanjanwala the learned advocate for the petitioner while challenging the legality and validity of the impugned order of detention on several grounds has ultimately pressed into service the only ground viz. that of the non-application of mind by the Detaining Authority which according to him vitiates the very subjective satisfaction of the said Authority rendering the impugned order of detention illegal and unconstitutional. Making good this submission Mr. Sanjanwala first of all invited our attention to the relevant paragraph under the attack appearing in the grounds of detention available at page-21 of the petition which reads as under: mr. Sanjanwala thereafter further submitted that on reading the copies of two judgments of acquittal supplied to the detenu in the context of the above quoted para more particularly last six lines of it there is indeed absolutely nothing whatsoever by way of any specific observation made against the prosecution witnesses on the basis of which the above quoted statement had any remote chance or occasion to be reflected or surfaced. Mr. Sanjanwala further submitted that is nothing in the said two judgments to indicate that the detenu came to be equaled because the prosecution witnesses were administered threats and consequently as they were afraid of the detenu they did not support the prosecution. Mr. Sanjanwala thereafter invited our attention to Sessions Case No. 212/89 wherein the detenu (accused no. Mr. Sanjanwala further submitted that is nothing in the said two judgments to indicate that the detenu came to be equaled because the prosecution witnesses were administered threats and consequently as they were afraid of the detenu they did not support the prosecution. Mr. Sanjanwala thereafter invited our attention to Sessions Case No. 212/89 wherein the detenu (accused no. 3) who alongwith other 12 accused came to be tried by the learned Sessions Judge Baroda for the alleged offences punishable under sections 120-B 304 328 210 of IPC read with sections 66 (1) (b) 67 67 81 and 83 of the Bombay Prohibition Act 1951 was ultimately acquitted by the judgment and order dated 26th August 1991 From this judgment it was further pointed out by Mr. Sanjanwala that in the said case the specific allegation against the detenu was that he alongwith another accused viz. Hotchand Chelaram (accused no. 5) after obtaining methyl alchol from one Manubhai Shanabhai (accused no. 6) and four others was transporting the same in his Ambassador ear bearing No. GBW-6674 from Nadiad to Baroda and was selling it in retail to one Kishor Ambalal Jaiswal (accused no. 4) Ambalal Jaiswal (accused no. 6) etc. It was further pointed out that in support of this allegation the prosecution has examined two witnesses viz. Ravjibhai Shanabhai (PW -1 Ex-10) and Mukesh Pathak (PW-22 -Ex-106 ). Inviting our further attention to the relevant para-8 of the said judgment it was pointed out to us that Ravjibhai Shanabhai and Mukesh Pathak had not supported the prosecution and that learned Judge has observed in the judgment that their evidence was not helpful to the prosecution. It was further pointed out that the Investigating Officer - Vaghela who recorded the statement of the two witnesses had already expired. Mr. Sanjanwala thereafter invited our attention to another judgment in Sessions Case No. 214/89 wherein the present detenu (accused no. 3) came to be tried alongwith other 16 accused persons for the alleged offences punishable under sections 120-B 304 328 and 201 of IPC read with sections 66 (1) (b) 67 67 81 and 83 of the Bombay Prohibition Act by learned Sessions Judge Baroda wherein at the end of the trial all of them came to be acquitted by the judgment and order dated 1-12-1991. Taking us through the said judgment Mr. Taking us through the said judgment Mr. Sanjanwala has pointed out to us that the specific allegation against the present detenu in the said case was that he and the other accused Hotchand Chelaram in conspiracy were purchasing methyl alcohol from one Rameshbhai Shanabhai (accused no. 6) and were carrying the same to their bungalows situated in a society at Ajwa Road Baroda and there by adding water five times to the quantity of the said methyl alcohol and after preparing pouches were selling in different areas. Mr. Sanjanwala thereafter invited our attention to para-6 of the said judgment wherein the learned PP incharge of the matter had conceded that so far as the accused nos. 2 to 17 are concerned (which includes the detenu also) there was no legal and trustworthy evidence against them Mr. Sanjanwala further submitted that in both these Sessions Cases the detenu came to be acquitted because there was no evidence against him. Mr. Sanjanwala was further at pains to point out that the matter does not rest here as there is nothing in the judgment to show that the witnesses had turned hostile or that they were administered threats and because of the fear they did not support the prosecution. He further pointed out that except two copies of the acquittal judgments no other documents by way of statements of various witnesses who did not support the prosecution has been furnished to the detenu. Mr. Sanjanwala further submitted that when such is a clear cut position on reading two judgments it is simply surprising as to on what basis the Detaining Authority in the grounds of detention came to observe that ( 3 ) MR. Sanjanwala on the basis of the above material further expressed serious doubts as to whether in fact the Detaining Authority has personally perused the above two judgments as according to him else such a patent infirmity as the one noticed in the grounds of detention would not have crept in at all. Mr. Sanjanwala finally submitted that the infirmity of non application of mind apparent on the face of the record as high lighted by him above is such a grave one and goes to the very root of the subjective satisfaction of the Detaining Authority that the same clearly renders the impugned order of detention vulnerable enough to be quashed and set aside. ( 4 ) AS against the above Mr. Y. P. Mehta the learned APP appearing for the respondents submitted that the point of non-application of mind raised above by Mr. Sanjanwala has no substance whatsoever. Making good his submission Mr. Mehta invited our attention to the statement of the witness no. 4 recorded on 7th June 1992 wherein it has been stated as under: mr. Mehta submitted that the aforesaid statement was very much a part of the material before the Detaining Authority and therefore it would indeed be quite unfair to suggest that there was no material at all on the record on the basis of which the particular statement referred to above in the grounds of detention which has been a subject matter of attack by way of non-application of mind can be taken as non- application of mind. Mr. Mehta carrying further his valient effort to sustain the order of detention was at pains to point out some observations made by no less an authority than the senior most Sessions Judge of the State in para-17 of the judgment rendered in Sessions Case No. 214/89 which reads as under: on the basis of the aforesaid submissions Mr. Mehta further contended that at the time of passing the detention order there were two sets of evidence available on record before the Detaining Authority viz. firstly the true copies of the impugned judgments wherein the detenu came to be acquitted and secondly the statement of the witness No. 4. If under such circumstances on the basis of the composite reading of two sets of evidence if the Detaining Authority subjectively opted for the statement of the Witness No. 4 wherein in terms it has been stated that it was because of the fear and threats to the witnesses that they did not support the prosecution case before the Court and the detenu came to be acquired and relied upon it it cannot be said that the Detaining Authority was not justified or was not subjectively satisfied in making the relevant observation in the grounds of detention. In support of the above contention Mr. Mehta has relied upon one decision of the Supreme Court rendered in the case of Golam Hussain @ Gama vs. Commissioner of Police reported in AIR 1974 S. C. 1336 [ref: Para- 4 p-1388]. Mr. In support of the above contention Mr. Mehta has relied upon one decision of the Supreme Court rendered in the case of Golam Hussain @ Gama vs. Commissioner of Police reported in AIR 1974 S. C. 1336 [ref: Para- 4 p-1388]. Mr. Mehta further submitted that the detenu was a notorious boot-legger involved in most harmful nefarious bootlegging activities playing with the lives of the innocent citizen and not only that but one serious case prohibition case u/ss. 66 (1) (b) 65 (c) and 81 of the Bombay Prohibition Act 1949 the same being C. R. No. IV/296/92 also came to be registered against him wherein 480 bottles of the english liquor valued at Rs. 4 44 0 came to be seized from his ambassador car. Further still in order to carry on the alleged bootlegging activities without any let or hindrance the detenu was also publicly administering threats of killing those who refuse to oblige him in falling in line in carrying ahead his nefarious activities. Because of all these activities of the detenu the reign of terror and alarm prevailed in the area where people were so much so afraid that they did not dare even to give information to the police. On the basis of these submissions Mr. Mehta finally urged that taking into consideration the gravity and seriousness of the offences in which the detenu was involved alongwith his other alleged illegal activities disturbing the public order which spoke volumes for themselves about the grave potentialities of the detenu of committing prohibition offences of such a huge magnitude it cannot be said that preventive detention order passed against the detenu was not sustainable. ( 5 ) WE have carefully perused the material shown to us by the learned advocates appearing for the respective parties and in the light of the same we must frankly admit at the very outset that Mr. Sanjanwala has been able to bring home the point. ( 5 ) WE have carefully perused the material shown to us by the learned advocates appearing for the respective parties and in the light of the same we must frankly admit at the very outset that Mr. Sanjanwala has been able to bring home the point. Now whether the relevant statement appearing in the grounds of detention which is alleged to be suffering from the vices of non-application of mind or not it has got to be stated as the fact remains that on perusal of the aforesaid two acquittal judgments there is indeed nothing therein whatsoever on the basis of which it can reasonably be said that the witnesses had not supported the prosecution case because of the alleged threats administered on them by the detenu and the resultant fear of harm therefrom. This we are saying so after carefully perusing the copies of the judgments shown to us. Thus when that is the position wherein in neither of the two judgments it has been observed that it was because of the threat administered and fear that the prosecution witnesses did not support the prosecution case it clearly reflects to the said extent non-application of mind or. reading something which is not there on the record by the Detaining Authority. Similarly Mr. Mehtas further attempt to salvage the situation by inviting our attention to the statement of the Witness No. 4 recorded on 7-6-1992 is also of no consequence. It is true that the said witness has stated that - On completion of these cases the detenu and his associates came to be acquitted and that he has heard that the detenu Ramu @ Rabbar Ambalal Jaiswal had given threats to the witnesses and because of which the witnesses did not support the prosecution and they came to be acquitted. Now this statement of the witness No. 4 is indeed too loose a statement as it is not borne out of his personal knowledge. Under the circumstances the question that arises for our consideration is whether any responsible public authority exercising the extra-ordinary power of preventive detention would be rationally ready to believe and accept such fleeting rumours in the society having no source whatsoever of getting itself tested ? Under the circumstances the question that arises for our consideration is whether any responsible public authority exercising the extra-ordinary power of preventive detention would be rationally ready to believe and accept such fleeting rumours in the society having no source whatsoever of getting itself tested ? No doubt it is quite true that the matters of preventive detention lie within the realm of suspicion jurisdiction and therefore for the purpose of preventively detaining any person it is just not necessary to call-in-aid the ordinary principles of criminal jurisprudence where before convicting and sentencing a person the evidence before the Court is required to be dependable and reliable enough beyond doubt much less the reasonable doubt as the Detaining Authority can as well on the basis of mere suspicion pass an order of preventive detention against any person. Still however even for the purpose of serving as a material sufficient enough for the suspicion rumour hear-say can not be permitted to be the basis in the matter of detention more particularly in the matters of preventive detention. The reason for this is quite simple and obvious. The ordinary meaning of the word rumour is a general talk or hear-say of the doubtful accuracy. It is a sort of too general loose irresponsible baseless fleeting talk of the town or village. It has neither head not tail that is to say - neither any identity or authencity of its own. It is something which even a man of ordinary prudence would unhesitatingly and safely discard from taking into consideration unless corroborated by some direct statement of the witnesses. Thus the statement of any witness based on more rumour or hear-say without the same being emanating from any personal knowledge/authencity regarding the same cannot be accepted or relied upon even in the case of suspicion jurisdiction. Even for exercising the said suspicion jurisdiction in the first instance there should be some first hand credible and verifiable material connecting the proposed detenu with the alleged activities prejudicial to the maintenance of the public order and not mere ipsi- dixit of any person. Even for exercising the said suspicion jurisdiction in the first instance there should be some first hand credible and verifiable material connecting the proposed detenu with the alleged activities prejudicial to the maintenance of the public order and not mere ipsi- dixit of any person. Under the circumstances while exercising the extra-ordinary jurisdiction of preventive detention the Detaining Authority is required to take some special and extreme care in seeing that by mistake or chance even it does not allow rumour or hear-say to form and shape the subjective satisfaction for the purpose of preventively detaining any person. If this special care is not taken and rumours and hear-say are allowed to have sway as a relevant material in the mind for the purpose and in process of forming and shaping subjective satisfaction for passing the detention order then in that case the hope and prayer of the detenu for liberty would indeed remain a far and distant cry in the wilderness and believe us that there would be no power on the earth including the power of judicial review which can ever control the despotic arbitrary and capricious exercise of power by some Detaining Authorities on the basis of some fleeting baseless talks of the town. When such is a patent hazard and danger of accepting and acting upon the rumour or hear-say evidence Mr. Mehtas reliance on some stray hear-say statement of the witness No. 4 as discussed above loses all its credibility and significance. It may be clarified that this is not a case where a witness as usual in the first paragraph of his statement after setting out general description of the background of the illegal activities prejudicial to the maintenance of the public order ultimately vouch safes the same by narrating the personal eye witness account of the alleged incident or corroborating some such incident. 5. 1 Turning next to the relevant observations made by the learned Judge in Session Case No. 214/89 Mr. Mehta submitted that the said observations which were personally persused by the Detaining Authority have indeed apparently carried some weight and impression upon him while passing the impugned order of detention and therefore taking the overall view of the matter it cannot be said that there was no material whatsoever on the record so as to brand the record so as to brand the Detaining Authority with any non-application of mind. Once again nodoubt it is true that the learned Judge has made some point-blank poignent desparate observations in para-17 of the judgment as regards the unfortunate state of affairs prevalent in the Police Department of Baroda at the relevant time but at the sometime on the sole basis of such too general observations without there being any further concrete material having direct nexus with the allegations it will not be safe to infer that the prosecution witnesses did not support the prosecution because they were administered threats and afraid as the result thereof. When such is the situation the fate of a citizen cannot be sealed on the basis of wild inference and some general observations made by the learned Judge as suggested by the learned APP Mr. Mehta. 5. 2 As regards the decision referred to and relied upon by Mr. Mehta in the case of Golam Hussain @ Gama (Supra) it is very clear that both in root and the context of the facts situations the same has no bearing to the facts and circumstances of the present case and therefore not applicable. Further as regards the passionate plea and the concern voiced by the learned APP that looking to the huge of muddamal liquor valued at Rs. 4 44 0 and the statement of some of the witnesses alleging the detenus activities prejudicial to the maintenance of the public order the order of detention should be sustained it may be stated that we are quite conscious of the alleged facts and if not more equally share the concern and anxiety of the learned APP regarding the alleged complicity of the detenu in the serious crime alleged against him. But then in view of the settled legal position viz. that when there is patent infirmity of non-application of mind which goes to the very root of the subjective satisfaction the detention order to that extent gets vitiated and therefore the same is of no consequence at all once we are satisfied that there is non-application of mind. But then in view of the settled legal position viz. that when there is patent infirmity of non-application of mind which goes to the very root of the subjective satisfaction the detention order to that extent gets vitiated and therefore the same is of no consequence at all once we are satisfied that there is non-application of mind. The question in such cases of preventive detention is the subjective satisfaction i. e. personal satisfaction of the Detaining Authority and this can be gauged only by seeing whether it reflects the awareness and the application of mind to the material available on the record or whether the same has just mechanically crept-in on the basis of whatever came to be submitted by the sponsoring authority and the Detaining Authority playing only the secondary role of merely gullible endorsee by signing whatsoever is placed before him and asked him to sign ? It appears that if indeed the Detaining Authority had taken the most needed care of carefully perusing the papers then in that case such an eventuality as the one that has taken place in the instant case would not have crept-in. We quite appreciate the efforts made by Mr. Y. F. Mehta the learned APP to sustain the order of detention but many a time even best of the efforts are just not enough enough to be enough and this is one of those case where Mr. Mehta will have to rest contended with best efforts put on by him. Nothing further has been pointed out to us by learned APP to sustain the order of detention. ( 6 ) IN view of the aforesaid discussion and the factual legal position the unavoidable conclusion that requires to be drawn is that since the impugned order of detention suffers from the patent vice of non-application of mind going to the very root of the order the same vitiates the same. In view of this Mr. Sanjanwala has not pressed other points raised in the petition. ( 7 ) IN the result this petition is allowed. The impugned order of detention dated 15th June 1992 is hereby quashed and set aside. The detenu Ramu @ Rabbar Ambalal Jaiswal is hereby ordered to be released and set at liberty forthwith unless his presence is so required in jail in connection with some other case or proceedings. Rule made absolute. Petition Allowed. .