RAHIMKHAN v. COMMISSIONER OF POLICE — 1993 DIGILAW 133 (GUJ)

KAPADIA, J. ( 1 ) THE present petition is filed by Rahimkhan alias Mamu maherabkhan Pathan against whom detention order has been passed by the commissioner of Police, Ahmedabad City on 4-10-1992 under Sec. 3 of the gujarat Prevention of Anti-Social Activities, Act. The petitioner was served with the grounds of detention also. ( 2 ) ON persual of the grounds it appears that there are three cases filed against the petitioner under the Prohibition Act, i. e. , C. R. 683 of 1992 of Kagdapith Police Station, D. C. B. 8 of 1992 of Crime Branch and C. R. No. 116 of 1992 of Dariapur Police Station. In C. R. No. 683 of 1992 of Kagdapith Police Station 103 foreign liquor bottles worth Rs. 5,135. 00 along with a Maruti Van valued at Rs. 1 lac were seized by the Police. There are statement of four persons recorded on 24-9-1992. The first witness narrates the incident of 1-9-1992 which took place at about 8-30. p. m. near Shah alam Gate. The second witness is witness in the incident narrated by the first witness. The third witness speaks about the incident of 4-9-1992 which took place at about 7-00 p. m. when he was passing through Shah Alam nawab Travels on his vehicle. The fourth witness appears to have been the witness of the incident narrated by the witness No. 3- All the said statements have been verified by the Police Superintendent on 26-9-1992. However, the names and addresses of the witnesses have not been furnished to the detenu by exercising the powers under Sec. 9 (2) of the PASA Act in the public interest. Relying on the said material as also other relevant facts the detaining authority was subjectively satisfied that it was necessary to detain the petitioner with a view to preventing him from continuing his activities as a bootlegger which are prejudicial to the maintenance of public order. ( 3 ) MR. V. H. Patel, learned Advocate for the petitioner has argued this matter very vehemently. First he contended that the representation made by the detenu on 3-11-1992 was considered by the detaining authority on 9- 11-1992 and the State Govt. processed the same on 24-11-1992 and rejected the same on 26-11-1992 and communication thereof was given on 27-11- 1992. He, therefore, submits that there is unreasonable and unexplained delay on the parr of the State Govt. processed the same on 24-11-1992 and rejected the same on 26-11-1992 and communication thereof was given on 27-11- 1992. He, therefore, submits that there is unreasonable and unexplained delay on the parr of the State Govt. in considering and deciding the representation and on that ground alone the petition should be allowed. ( 4 ) MR. K. V. Shelat, learned Addl. P. P. has pointed out that in this case reference was made to the Advisory Board on 25-10-1992 and the meeting of the Board was held on 20-11-1992 and report was made on the same day. He furthur pointed out that as the matter was referred to the Board the State Govt. instead of deciding the representation forwarded it to the board immediately and the Board lias considered the same and after receipt of the report of the Board on 21-11-1992 the State Govt. processed the representation on 24-11-1992 and ultimately rejected the same on 26-11-1992 and therefore, there is no delay in considering and deciding the said representation. ( 5 ) IN view of the said facts Mr. Patel, learned Advocate submitted that in view of the latest judgment of the Supreme Court in the case of Moosa husein Sanghar v. State of Gujarat and Ors. . J T 1993 (1) SC 44 the representation should have been decided by the State Govt. even if it was received after the reference was made to the Advisory Board and it should not have waited tiil the report of the Board is received and after deciding the representation the State Govt. should have forwarded the same along with its decision to the Board. Mr. Patel has placed reliance on the following observations made by the Supreme Court in para 13 of the said judgment :". . . . . . Moreover, even after the reference had been made on 25/03/1991 the representation of the appellant could have been considered by the State Government and it could have been forwarded to the Advisory Board along with the decision of the State Government on the said representation instead of adopting this course, the State Government forwarded the representation to the Advisory Board and took up the said representation for consideration after the receipt of the opinion of the Advisory Board and rejected it by order dated 13/05/1991. . . . . . " ( 6 ) MR. Shelat, learned Addl. . . . . . " ( 6 ) MR. Shelat, learned Addl. P. P. submitted that in this case the observation made by the Larger Bench of the Supreme Court in the case of K. M. Abdnlla Kunhi and B. L. Abdul Khader v. Union of India and Ors. , AIR 1991 SC 574 would be applicable. Mr. Shelal placed reliance on the following observations made by the Larger Bench in para 16 of the aforesaid judgment :". . . . . . The representation may be received before the case is referred to the Advisory board but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received afier the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory board provided the Board has not concluded the proceeding. . . . "it has been further observed in the said paragraph as under :"in both the situations there is no question of consideration of the representation before the receipt of the report of the advisory Board. Noc it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board it is proper for the Government in such situations to await the report or the Board. if the Board finds no material for detention on the merits and reports accordingly the Government is bound to revoke the order of detention. Secondly. even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention The Board has to submit its. report within eleven weeks from the dale of detention The Advisory Board may hear the detenu at his request. The Constitution of the Hoard shows that[ it consists, of eminent persons who are Judges or persons qualified to be judges or the High Court. It is, therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. The Constitution of the Hoard shows that[ it consists, of eminent persons who are Judges or persons qualified to be judges or the High Court. It is, therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation i, received by the Government after the advisory Board has made its report there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible. "mr. Shelat therefore, submits Supreme Court has made specific observations in particular situations they should be followed and not the observations made by the Supreme Court in the case of Moosa (supra) which has been decided by the Bench consisting of two Honble Judges of the Supreme Court when the case of Abditlla Kiinhi (supra) way decided by the Bench consisting of five Honble Judges of the Surpeme Court, ( 7 ) MR. Patel, learned Advocate for the petitioner lias therefore placed reliance on the judgment of the Full Bench of this Court in the case of nizamuddin Suleman v. New Shorrock Spg. and Mfg. Mills Co. Ltd. , nadiad and Am. , (1979) XX GLR 290. In the said case while dealing with art. 141 of the Constitution of India the Honble Chief Justice of this court speaking for Bench after quoting para 12 of the judgment in the case of Union of India v. K. S. Sabramanian, AIR 1976 SC 2433 , has observed as under :"of course, if the views expressed earlier by a Larger Bench of the Supreme Court have been explained even by a smaller Bench in a subsequent decision, the explanation by the smaller Bench of the Supreme Court would be required to be followed by High Courts before whom the earlier decision of the Larger Bench and the subsequent explanation of the same judgment by the smaller Bench are cited. Otherwise as indicated by Beg, J. in Union of India v K. S. Subramanian (supra) the. Otherwise as indicated by Beg, J. in Union of India v K. S. Subramanian (supra) the. High Court is bound to follow the decision of the Larger Bench of the Supreme Court " ( 8 ) IN that view of the matter it would be necessary to find out as to whether in the case of Moosa (supra) the Supreme Court has taken into consideration the observations made by it in the earlier case of Abdulla Kunhi (supra) or not. It may be stated that in the case of Moosa (supra) the facts were that the representation dated 15-3-1991 was received by the Government on 18-3-1991 and the case of the appellant was referred to the Advisory board on 25-3-1991 and representation was considered by the Board on 30- 4-1991 and said representation was considered by the State Government subsequently on 13-5-1991 and confirmed the order on the same day. In the said case it was not the case of the State Government or other respondents that there was no lime tor the State Government to consider the representation of the appellant before referring the matter to the Board or before the said matter was considered by the. Advisory Board. The only explanation that was offered by the State Government was that there were holidays on 23rd and 24/03/1991 and that there was hardly five days time with the authorities from the date of receipts of the representation and the date of making reference to the Board. In the said case that was considered to be the important distinction and ultimately in the facts and circumstances of the case it was found that there was inordinate delay on the part of the State government in considering the representation of the appellant and therefore, said delay in disposal of the representation has rendered the detenrion of the detenu illegal. It may be stated that in para 11 of the judgment in the case of Moosa (supra) the Supreme Court has quoted para 12 of the; judgment in the case of Abdulla Kunhi (supra) and para 12 of the judgment in the case of Moosa (supra) the Supreme Court has quoted first few lines of para 16 of the judgment in the case of Abdulla Kunhi (supra ). However, the Supreme Court in the subsequent judgment has not taken into consi-d-ration the second part of the observation that is received for deciding the representation. We have quoted the said observation just hereinabove while mentioning the arguments advanced by the Addl. P. P. When that part of the judgment has not been considered at all possibly as it was not necessary in the facts of that case. In view of the judgment of the Full bench of this Court that part of the judgment has not been considered and explained in the subsequent judgment in the case of Moosa (supra ). Therefore, the observations made by the Larger Bench of the Supreme Court in the case of Abdulla Kunhi (supra) would be binding law as declared by the supreme Court under Art. 141 of the Constitution of India. ( 9 ) REVERTING to the facts of the present case, as stated above, representation dated 3-11-1992 was received by the State Government on 9-11-1992 before which reference was made to the Advisory Board on 25-10-1992 and meeting of the Board was held on 20-11-1992. Therefore, no Government would take the risk of losing the benefit of the opinion of the Advisory Board and therefore, the State Government awaited till the report of the Board is received and the moment the report was received on 21-11-1992 the immediately processed the representation and decided it on 26-11-1992 and communication thereof was given on 27-11-1992. In view of the said facts considering the binding judgment in the case of Abdulla Kunhi (supra) it cannot be said that there was any delay much less inordinate delay in considering and deciding the petitioners representation by the State Government particularly when they awaited for the report of the Board as representation was received after the reference was made. We, therefore, do not find any substance in this contention raised by Mr. Patel and we reject the same. ( 10 ) MR. Patel, learned Advocate for the petitioner further contended that the representation dated 11-11-1992 addressed to the Chairman of the Advisory board has not been considered by the State Govt. It may be stated that the State Govt. received the said representation along with the report of the advisory Board on 21-11-1992 and it was considered and rejected on 24- 11-1992 as pointed out by Mr. Shelat, Addl. P. P. from the file. It may be stated that the State Govt. received the said representation along with the report of the advisory Board on 21-11-1992 and it was considered and rejected on 24- 11-1992 as pointed out by Mr. Shelat, Addl. P. P. from the file. When that is so, we do not find any merit in this contention also. ( 11 ) THE last contention raised by Mr. Patel, learned Advocate for the petitioner is regarding allegation of mala fides and non-placement of Certain facts before the detaining authority. According to him, it has vitiated the subjective satisfaction arrived at by the detaining authority. He has raised this contention on the basis of the amendment permitted to be made vide order passed in Misc. Cri. Appln. No. 839 of 1993. He submitted that a maruti Van bearing No. GJ-1-4-6276 was seized from the house of the petitioner and inspire of the order passed by the learned Metropolitan magistrate, Court No. 10, Ahmedabad, on 23-9-1992 the Police did not released the said Van and therefore, the applicant filed a contempt petition against the Police and thereafter the Van was released. He further submitted that said facts clearly disclose the mala fide intention on the part of the sponsoring Authority in initiating the detention proceedings against the petitioner and that the said materials which are relevant for forming subjective satisfaction one way or the other by the detaining authouly have not been placed before the detaining authority. ( 12 ) IN reply to the said contention Mr. Shelat, learned A. P. P. has made the position very clear that Maruti Van was seized by the P. I. , Kagdapith police Station in C. R. No. 683 of 1992 and that no vehicle was seized in the case registered at Dariapur Police Station being C. R. No. 116 of 1992. Mr. Shelat further pointed out that some application was made before learned Metropolitan Magistrate, Court No. 10, Ahmedabad, who deals with the cases registered at Dariapur Police Station and said learned Magistrate passed the order. According to him, when the vehicle was not attached in the case registered at Dariapur Police Station there was no question of passing any order for handing over the custody of the same to any one during the pendency of the trial in that case. According to him, when the vehicle was not attached in the case registered at Dariapur Police Station there was no question of passing any order for handing over the custody of the same to any one during the pendency of the trial in that case. It may he mentioned that the application for contempt was withdrawn on 30-9-1992 and subsequently an appliction was made before the learned Metropolitan Magistrate, Court No. 4, Ahmedabad, by the son of the petitioner for getting the custody of the said vehicle which was seized in the C. R. No. 683 of 1992. Order was passed on the said application dated 14-50-1992 on 16-10-1992. However, bond was produced on 19-11-1992 and that very day the vehicle was released. In that view of the matter Mr. Shelat submits that this contention raised on behalf of the petitioner is totally misconceived and need not be considered. He further pointed out that when the P. I , Kagdapith Police Station made the proposal for detention on 25-9-1992 there was no such application for getting back the custody of the Maruti Van as it was made only on 14-10-1992. So, there was no question of harbouring any grudge against the petitioner by the Police Authorities and it may be other way round. However, these facis clearly reveal that allegations regarding mala fides are totally misconceived and baseless. ( 13 ) IT is to be considered whether the aforesaid facts can be relevant for the purpose of arriving at the subjective staisfaction on the point of detaining a person by the detaining authority. It is true that when a case is pending and bail application is made and if the person is ordered to be released on bail, that aspect would be relevant and vital because the court might have imposed certain conditions which are required to be taken into account by the detaining authority. However, when an application for returning the muddamal is made and if any order is passed thereon, it cannot be said that it is a relevant material to be considered by the detaining authority because it would not have any bearing on the point as to whether the person should be detained or not. If this argument of mr. However, when an application for returning the muddamal is made and if any order is passed thereon, it cannot be said that it is a relevant material to be considered by the detaining authority because it would not have any bearing on the point as to whether the person should be detained or not. If this argument of mr. Patel is taken to its logical conclusion all the muddamal, including liquor bottles seized in all the cases would be required to be produced before the detaining authority or at least the applications and orders passed thereon would be required to be produced before the detaining authority. Such argument would lead us to ridiculous result and the very purpose of detaining a person for preventing him from acting in any manner prejudicial to the maintenance of public order would be defeated. We, therefore, do not find any substance in this contention raised by mr. Patel on behalf of the petitioner that the application made for the purpose of getting the custody of the Maruti Van and the order passed thereon have any relevance in the matter of detention. ( 14 ) NO other contention is raised before us. In result the petition fails and stands dismissed as we do not find any substance in any of the contention raised on behalf of the petitioner. Rule is accordingly discharged. .