MANGABHAI CHANDUBHAI VASAVA v. STATE — 1993 DIGILAW 135 (GUJ)

D. G. KARIA, J. ( 1 ) THE petitioner has challenged the legality and validity of the detention order dated October 16 1992 whereby the learned District Magistrate Baroda respondent no. 2 herein in exercise of his powers under sub-section (2) of Section 3 of The Gujarat Prevention of Anti-social Activities Act 1985 (hereinafter referred to PASA Act) ordered to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The petitioner was supplied with grounds of detention on the same day for his impugned detention. ( 2 ) IT is evident from the grounds furnished to the detenu that the petitioner-detenu was involved in nine criminal cases under the provisions of the Bombay Prohibition Act 1949 Four statements of the eye witnesses were also recorded to the effect that the petitioner was indulging in the activities as bootleggar. The second respondent being subjectively satisfied on the materials placed before him concluded that it was necessary to detain the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of public order as he was indulging in the activities of bootleggar as defined in section 3 (4) of PASA Act. ( 3 ) MR. P. B. Majmudar learned advocate for the petitioner submitted that out of nine criminal cases referred to in the main grounds of detention the petitioner was acquitted in five cases prior to the passing of the impugned detention order and this fact was not taken into consideration by the respondent no. 2 as such the subjective satisfaction of the second respondent was vitiated. In the submission of Mr. Majmudar this has rendered the impugned detention order of the petitioner as invalid and illegal. Mr. Majmudar further submitted that the detaining authority did not apply its mind while passing the detention order by not considering the acquittals recorded in favour of the petitioner and as such the detention order is improper and illegal. Mr. Majmudar relied upon the case of D. S. Agarwal vs. Police Commissioner reported in AIR 1989 SC 1282 in respect of his submission that the fact of acquittal of detenu in five of the cases mentioned in the grounds was not placed before the detaining authority and this has vitiated the subjective satisfaction of the detaining authority. Mr. Majmudar relied upon the case of D. S. Agarwal vs. Police Commissioner reported in AIR 1989 SC 1282 in respect of his submission that the fact of acquittal of detenu in five of the cases mentioned in the grounds was not placed before the detaining authority and this has vitiated the subjective satisfaction of the detaining authority. We do not find any substance this submission of Mr. Majmudar in view of the provisions of Section 6 of PASA Act. Section 6 of PASA Act reads as under:6 Where a person has been detained in pursuance of an order of detention under section 3 which has been made on two or more grounds such order of detention shall be deemed to have been made separately on each ground and accordingly : (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are (i) vague (ii) non-existent (iii) not-relevant (iv) not connected or not proximately connected with such person or (v) invalid for any other reason whatsoever and it is not therefore possible to hold that the Government or the officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or the officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds". ( 4 ) IT is clear from the aforesaid provision of Section 6 that the Government or the officer making the order of detention shall be deemed to have made the order of detention under the said Section after being satisfied as provided in that section with reference to the remaining four grounds. In the present case there are in all nine cases under the Bombay Prohibition Act 1949 against the petitioner. In the present case there are in all nine cases under the Bombay Prohibition Act 1949 against the petitioner. Assuming that the 5 cases wherein the petitioner was acquitted would not have been considered by the detaining authority while passing the impugned detention order there are still remaining four cases on the basis of which the detaining authority shall be deemed to have made the impugned detention order under section 3 of PASA Act after being satisfied with reference to remaining four cases which would be pending against the petitioner at the time of passing the impugned detention order in the grounds supplied to the petitioner. Besides there were also four statements of witnesses stating that the petitioner was indulging into the activities as bootleggar and the said statements are taken into consideration by the respondent no. 2 while passing the detention order. In this view of the matter the impugned detention order cannot be said to be inoperative merely because five cases of acquittal were not taken into consideration by the detaining authority at the time of passing the impugned order. In this connection a reference to the case of the Chandulal vs. Commissioner of Police reported in 31 (1) GLR page 599 would be relevant. The Division Banch of this Court consisting of Mr Justice B. S. Majmudar as he than was and Mr Justice B. S. Kapadia distinguished the case of Dharmadas Agarwal (supra) and held as follows:25 However Mr Patel has relied on the judgment of the Supreme Court in the case of D. S. Agarwal vs. Police Commissioner AIR 1989 SC 1282 : (1989 (2) GLR 1035 (SC) ). Before we consider this authority we may mention that the judgment in the case of Prakash Chandra (supra) is a judgment of three Judges of the Supreme Court spoken through Justice Sabyasachi Mukharji while the judgment in the case of D. S. Agarwal (supra) after considering various authorities cited before the Supreme Court including the judgment in the case of Prakash Chandra (supra) it is observed that the requisite subjective satisfaction of the detaining authority the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either with-hold or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. In the said case acquittals of the detenu in the cases mentioned at Sr. Nos. 2 and 3 were not brought to the notice of the detaining authority and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. On the facts of that case the Supreme Court came to the conclusion that result is that non-placing of the material fact namely acquittal of the detenu in the said two cases resulting in non-application of mind of the detaining authority to the said fact vitiated the requisite subjective satisfaction rendering the detention order invalid. But it cannot be said to be an authority for the proposition that consideration of non- existent irrelevant or vague fact vitiates the subjective satisfaction arrived at by the detaining authority on the remaining ground or grounds particularly in view of Sec. 6 of the PASA Act. It may be mentioned that in the said case the petitioner was detained as he was a dangerous person as defined under Sec. 2 (c) of the PASA Act with a view to preventing his activity as such. The detention order was passed on the grounds for which a chart was made and the said chart shows that there were five cases against him out of which one case of 1981 was compromised on 16. 3. 1982 the fourth one was not proved two other cases (Sr. Nos. The detention order was passed on the grounds for which a chart was made and the said chart shows that there were five cases against him out of which one case of 1981 was compromised on 16. 3. 1982 the fourth one was not proved two other cases (Sr. Nos. 2 and 3) were shown to be pending trial while it is clear from the judgment that the detenu was acquitted on 20. 8 in case at Sr. No. 2 and on 5. 6. 1986 in the case at Sr. No. 3. Therefore out of five cases he was already acquitted in four cases while only one case was pending against him. Therefore the material was only with regard to one case while as per the definition of dangerous person one case would not be sufficient for holding him to be a dangerous person. Therefore in the background of the aforesaid facts the observations made by the Supreme Court are to be read. As stated above that is with regard to non-consideration of vital or material fact which is not the case here and therefore this authority does not help the petitioner". ( 5 ) THE point raised by Mr. Majmudar is also covered in the judgment rendered in Special Criminal Application No. 1355/1992 passed by this Court (Coram: B. S. Kapadia and B. C. Patel JJ.) on 26 February 1993 It is held in the judgement that section 6 of PASA Act is very clear with regard to separate order deemed to have been made on each ground and further on the subjective satisfaction of the officer making the order of detention on the remaining ground or grounds it would not require any authority to support the aforesaid understanding of Section 6 of the PASA Act. ( 6 ) IT may also be pointed out that Supreme Court in the case of State of Gujarat vs. Chamanlal Manjibhai Soni reported in AIR 1981 SC page 1480 while quashing the order of this Court has observed with reference to the Section 5-A of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) as under:"the reason for enacting Section 5a was that the fact that several High Courts look the view that where several grounds or mention in an order of detention and one of them is found to be either bad or irrelevant then the entire order is vitiated because it cannot be predicted to what extent the subjective satisfaction of the authority could have been influenced by the vague or irrelevant ground. It was to displace the basis of these decisions that the parliament enacted Sec. 5a in order to make it clear that even if one of the grounds is irrelevant but the other grounds are clear and specific that by itself would not vitiate the order of detention". The aforesaid observations made by the Supreme Court squarely applies to the PASA Act where Section 6 is inserted on the same lines of Sec. 5a of the COFEPOSA Act. Its verbatim is the same and therefore interpretation given to Section 5-A of the COFEPOSA Act would be applicable to Section 6 of the PASA Act. In this view of the matter we find no substance in the contention of Mr. Majmudar that subjective satisfaction of the detaining authority was vitiated in not taking into consideration the five cases wherein the petitioner was acquitted. ( 7 ) IN view of these specific provisions of Section 6 of the PASA Act even the grounds regarding 5 criminal cases in which the petitioner was acquitted before passing of the impugned detention order are taken out of the consideration even then the order of detention would be deemed to have been made separately on each of the remaining four grounds and the Statements of four witnesses who have clearly involved the petitioner as indulging in bootlegging activities. This view was also taken by the Division Bench of this Court consisting of B. S. Kapadia and K. R. Vyas JJ. in Special Criminal Application Nos. This view was also taken by the Division Bench of this Court consisting of B. S. Kapadia and K. R. Vyas JJ. in Special Criminal Application Nos. 61/92 62 and 589/1992 and the decision was rendered on July 21 1992 ( 8 ) MR Majmudar next submitted that the activities of the petitioner cannot amount to prejudicial to the maintenance of public order inasmuch as at the most it can be said to be cases of law and order. Mr. Majmudar in this connection relied upon case of P. K. Mehta vs. Commissioner of Police and another reported in 1989 Supple. (1) SCC 322 and also the case of Lallan Prasad Chunnilal Yadav vs. S. Ramamurthi reported in AIR 1993 SC 396 and argued that in these cases the activities of the petitioner of bootlegging cannot be said to fall within the meaning of being prejudicial to the maintenance of public order. We are not impressed by this contention of Mr. Majmudar. The case of P. K. Mehta (supra) which was distinguished in case of Harpreet Kaur Versus State of Maharashtra reported in Judgement Today of 1992 (1) SC 502 wherein it was observed that in case of P. K. Mehta the allegations in the grounds of detention were that the detenu-bootleggar who was indulging in the sale of foreign liquor and that he and his associates were also using force and violence creating a sense of terror. The detenu was caught with bottles of english liquor without pass permission or licence. The Supreme Court found that the detenu was only a bootleggar and he could not be preventively detained under the provisions of PASA Act unless as laid down in Section 3 (4) of the Act his activities as a bootleggar had the potentiality of affecting adversely or likely to effect adversely the maintenance of public order the provision of Section 3 (4) will not be attrcdted. On the peculiar facts of the case it was found that the alleged activities of the detenu did not affect public order but created only law and order problem. On the peculiar facts of the case it was found that the alleged activities of the detenu did not affect public order but created only law and order problem. In case of Lallan Prasad Yadav (supra) the Supreme Court held that in the facts of that case instances mentioned in the grounds supplied to the detenu spread over a time in which the detenu was attributed to have threatened the individuals by speaking words on giving them fists and kicks blows but his activities could in no event be summed up as activities prejudicial to the maintenance of public order. It was observed by the Supreme Court that these activitites are patently prejudicial to the maintenance of law and order. In the instant case it is clear from the cases filed and also from the statements that came to be record that the petitioner has been indulging in activities as a bootleggar and that he is likely to continue his activites as a bootleggar. The statements do show that the petitioner has filthily abused and gave stick blows to one witness and fist and kicks blows to the other and as a result of which the public ran helter skelter and even the tempo of the public was disturbed. The small shop keepers also closed down their shops by putting down their shutters. The aforesaid facts as appear from the record clearly bring the case of the petitioner within the purview of the case of Ram Manohar Lohia vs. State of Bihar AIR 1966 SC 740 and other cases which are referred to in Mrs. Harpreet Kaur Case (supra ). It may be pointed out that in case of Lallan Prasad Chunnilal Yadav (supra) the case of Rajendra Kumar Prasad Natwarlal Shah vs. State of Gujarat AIR SC 1988 1255 does not appear to have been placed before the Supreme Court. In the said case of Rajendrakumar it is observed as follows:"14 Point No. (3): The contention regarding lack of certainty and precision on the part of detaining authority as to the real purpose of detention and that they were all rolled up into one at first blush appear to be attractive but on deeper reflection seems to be of little or no consequence. The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order. The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order. It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a bootleggar as defined in S. 2 (b) and therefore he comes within the purview of sub-s. (1) of s. 3 of the Act by reason of sub-s. (4) thereof. Sub-s. (4) of S. 3 with the Explanation appended thereto gives an enlarged meaning to the words acting in any manner prejudicial to the maintenance of public order and reads: (4) For the purpose of this section a person shall be deemed to be acting in any manner prejudicial to the maintenance of public order when such person is engaged in or is making preparation for engaging in any activities whether as a bootleggar or dangerous person or drug offender or immoral traffic offender or property grabber which affect adversely or are likely to affect adversely the maintenance of public order. Explanation: For the purpose of this sub-section public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly is causing or is likely to cause any harm danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life property or public health". The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellent that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary to make an order that he be detained. In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction. They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him under S. 3 (2) of the Act and recite:"in order to safeguard the health of people of Gujarat for public peace and in the interest of the nation with a view to stop such anti-national activities. . . . . . . for the purpose of public peace and in the interest of the 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". The ratio of the judgment rendered in Rajendrakumars case (supra) has not been considered in the aforesaid judgment of Lallan Prasad Chunnilal Yadav (supra ). The judgment rendered in case of Lallan Prasad Chunnilal Yadav is rendered by a learned Single Judge of the Supreme Court whereas the judgment in the case of Rajendrakumar is that of Division Bench. ( 9 ) MR. Majmudar ld. advocate for the petitioner thereafter has relied upon the judgement of the Division Bench of this court in the case of Nizamuddin Suleman vs. New Shorrock Spg. and Mfg. Mills Co. Led. Nadiad and another XX GLR 290. In the said case while dealing with Article 141 of the Constitution of India the Honble Chief Justice of this Court speaking for the Bench after quoting para-12 of the judgment in the case of Union of India vs. R. S. Subramanian 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. R. S. Subramanian (supra) the High Court is bound to follow the decision of the larger Bench of the Supreme Court". In view of the aforesaid judgment we have carefully considered both the judgments-One in case of Lallan Prasad Chunnilal Yadav and other in the case of Rajendrakumar Natwarlal (supra ). In view of the aforesaid judgment we have carefully considered both the judgments-One in case of Lallan Prasad Chunnilal Yadav and other in the case of Rajendrakumar Natwarlal (supra ). We eventually find that the point of enlarged meaning attributed to public order as given in section 3 (4) of the PASA Act which has been considered by the Supreme Court in the case of Rajendrakumar is not explained in the subsequent case of Lallan Prasad Chunnilal Yadavs case (supra) and therefore the ratio of the judgement defined in Rajendrakumars case (supra) would prevail and binding to this Court under Article 141 of the Constitution of India. ( 10 ) MR. Majmudar lastly submitted that the petitioner was not given copy of the order granting bail in prohibition cases as well as copies of the judgment in Chapter Case No. 12/992 which was said to have been decided in favour of the petitioner and as a result of which the petitioners right to make the effective representation was adversely affected. There is nothing to show on record that the Chapter Case was decided in favour of the petitioner. On the contrary Mr. Raval ld. APP informs us that the judgment rendered in the Chapter Case is against the petitioner wherein the petitioner was ordered to execute the bond and to give security and as such the said case was decided against the petitioner. It appears that the petitioner has not taken this point in the petition i. e. he was not supplied the copies of the bail orders. The petitioner was released on bail and he must be in possession of the documents whereby he was granted bail and bail-orders. In that view of the matter we find no substance in submission of Mr. Majmudar that the petitioner could not make effective representation for alleged want of documents. ( 11 ) MR. Majmudar lastly contended submitting that the representation dated 9. 11. 1992 has been considered and decided by the government after inordinate delay. Mr. Raval ld. APP ascertaining from the file has submitted that the representation was dated 11 November 1992 which was received by the government on 13th November 1992 and it was forwarded to the advisory board on 17 November 1992 Mr. Raval further submits that a reference to the advisory board was already on 4 November 1992 prior to receiving the representation from the detenu. Raval further submits that a reference to the advisory board was already on 4 November 1992 prior to receiving the representation from the detenu. The said representation was considered by the advisory board on 24 November 1992 and thereafter the government received the record on 25th November 1992 The government thereafter considered and rejected the same on 26th November 1992 and the same was communicated to the detenu on 27th November 1992. In view of the ratio laid down in case of M. Abdul Kunhi and B. L. Abdul Khader vs. Union of India and others AIR 1991 SC 574 as followed in Special Criminal Application No. 260 of 1993 decided on 11th March 1993 by the present Bench it cannot be said that there was inordinate or unexplained delay in considering the representation of the petitioner. No other contention is raised. ( 12 ) WE find no substance in the petition. Petition is therefore liable to be dismissed. Consequently the petition is dismissed. Rule discharged. Petition Dismissed. .