Shaikh Akil Shaikh Kalu v. STATE OF GUJARAT — 1993 DIGILAW 170 (GUJ)

KAPADIA, J. ( 1 ) THE present petition is filed by the petitioner who is a detenu for qashing and setting aside the order of detention dated 14-10-1992 passed by the Commissioner of Police, Surat City, on his being satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order in the area falling under the jurisdiction of Athwa Lines Police Station, it is necessary to detain the petitioner. The said order is passed under S. 3 of the Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as "the Act" for short ). The petitioner was also served with the grounds on which the order of detention was passed, on the same day. ( 2 ) ON perusal of the grounds, it appears that the detaining authority has relied on two Cr. Rs. being C. R. No. 135/91 and 9/92 and both are for the offences under Chapter XVI and XVII of the Indian Penal Code. Further, the detaining authority has relied on statements of four witnesses relating to the incidents of 21-3-1992, 26-4-1992, 6-6-1992 and 18-8-1992. The detaining authority also took into consideration the apprehension of the witnesses who gave the statements about the safety of the person and property if the names and addresses of the witnesses are disclosed. As requested by the witnesses in their statements, with a view to ascertain the same, the detaining authority has directed the Superintendent of Police c Division, for verifying the said statements. The Superintendent of Police verified the same and after the said inquiry was over, the detaining authority exercised privilege under Section 9 (2) of the Act for not disclosing the names and addresses of the witnesses. ( 3 ) THE detaining authority has also taken into consideration other relevant factors for deciding about the necessity of detaining the petitioner. He has also considered that the petitioner was released on bail in C. R. No. 79/92 in which one of the conditions was that excepting the two lady accused, each of the accused was directed not to enter in the limits of Athwa Lines Police Station, and that each of them were released on a sum of Rs. 5,000/ - and each of them executing personal bond of the like amount. Even thereafter he has committed breach of the said direction and continued the said criminal activities. 5,000/ - and each of them executing personal bond of the like amount. Even thereafter he has committed breach of the said direction and continued the said criminal activities. Accordingly, on his being subjectively satisfied that the petitioner was a dangerous person and his activities were prejudicial to the maintenance of public order, the detaining authority has passed the aforesaid order of detention. ( 4 ) MR. M. N. Barejia, learned advocate appearing for the petitioner, has raised various contentions with regard to the non-compliance of the mandatory requirements. He submits that the report was not made by the detaining authority to the State Government forthwith. He further states that the State Government did not approve the order within the stipulated period. Reference was not made to the Advisory Board within the period of three weeks. He also submits that the Advisory Board did not give report within the stipulated period. In view of the aforesaid contentions, Mr. Shelat, learned A. P. P. , has verified the files and pointed out from the files that the report of the detention order dated 14-10-1992 was made to the State Government on the same day, that is, 14-10-1992. The said order is approved by the State Government on 21-10-1992. The State Government made reference to the Advisory Board on 4-11-1992 and the Advisory Board meeting was kept on 20-11-1992. The Advisory Board gave its report on 1-12-1992 and confirmation of the order of detention is made by the State Government on 10-12-1992. In view of the aforesaid facts, none of the contentions raised by Mr. Barejia with regard to the non-compliance of the mandatory requirements have any merit and, therefore, they are rejected. ( 5 ) THE second point which is raised by Mr. Barejia is that the activities of the petitioner cannot be said to be activities prejudicial to the maintenance of public order as it is clearly stated in the order of detention itself that it was necessary to pass the detention order with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order in the area falling under the jurisdiction of Athwa Lines Police Station. This contention, it appears, has been raised on account of some misconception on the part of the learned advocate for the petitioner. This contention, it appears, has been raised on account of some misconception on the part of the learned advocate for the petitioner. If we read Section 3 of the Act, it is clear that the said order can be passed provided that it is necessary to prevent the concerned person from acting in any manner prejudicial to the maintenance of the public order and the meaning of public order has also been specifically mentioned in sub-section (4) of Section 3 of the Act and in the explanation, which clearly provides that for the purpose of this section, that is, sub-section (4) of Section 3 of the Act, 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 the 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 orany section thereof. Thus the words "any section thereof" would clearly include the area because that would also include the section of the public at large. It is not, therefore, always necessary that the activities of a person who is detained must be spread over the entire State or the whole city. In this view of the matter, we do not find any merit in this contention also and hence it is rejected. ( 6 ) THE third contention raised by Mr. Barejia is that the family members of the petitioner were not informed of the order served on the petitioner as the order of detention was served on the petitioner by calling him at the police station on 15-10- 1992 at 12. 30 noon. This contention also has no force inasmuch as there is clear statement made by the wife of the petitioner Valida Banu that she was informed about the detention of her husband on the same day within a couple of hours of the service of the detention order on the petitioner. The petitioner has also clearly stated in his statement that he is residing with his wife, mother and children, when he was served with the detention order. When that is so, this contention has also no substance. ( 7 ) THE next contention which is raised by Mr. The petitioner has also clearly stated in his statement that he is residing with his wife, mother and children, when he was served with the detention order. When that is so, this contention has also no substance. ( 7 ) THE next contention which is raised by Mr. Barejia is that with a view to give him to make an effective representation, the entire material on the basis of which the subjective satisfaction is formed by the detaining authority should have been supplied to the petitioner. He further elaborated his submission by stating that he was deprived of that opportunity by not disclosing the names and addresses of the witnesses. He, therefore, submits that by wrongly exercising privilege by the detaining authority under Section 9 (2) of the Act, his fundamental right guaranteed under Art. 22 (5) of the Constitution of India has been violated. Prima facie, this submission appears to be quite attractive, but on perusal of the statements it is clear that the statements of the four witnesses which are relied on by the detaining authority for the purpose of forming his subjective satisfaction were recorded on 22-9-1992, 25-9-1992, 29-9-l992 and 2-10-1992 and thereafter it appears that the proposal was made for detaining the petitioner and it was forwarded to the detaining authority on 7-10-1992. It further appears from the files as pointed out by Mr. Shelat, learned A. P. P. , that the Commissioner of Police, wrote to the Superintendent of Police, c Division, Surat, on 9-10-1992 for the purpose of verifying the aforesaid statements. The said direction was given to the Superintendent of Police after receiving the proposal and in pursuance of the direction, the Superintendent of Police, c Division, Surat, has verified these statements. On 10-10-1992 two statements were verified. On 1110-1992 one statement was verified and the fourth statement was verified on 12-10-1992. The said statements were read over to each of the witnesses and each of them said that the said statement was correctly recorded and they also requested even before the authority verified the same for not disclosing their names and addresses; otherwise even if police protection is given, they or their family members will be put to harm. After making necessary inquiry as mentioned above the detaining authority has exercised the privilege under Section 9 (2) of the Act. After making necessary inquiry as mentioned above the detaining authority has exercised the privilege under Section 9 (2) of the Act. Thus the detaining authority has also considered the public interest before exercising the discretion for not disclosing the names and addresses of the witnesses. Therefore, it cannot be said that he has wrongly exercised the discretion. When that is so, we do not find any force in this contention also. Hence, this submission is also rejected. ( 8 ) THE next contention raised by Mr. Barejia is that the detaining authority has power to detain any person provided that the activities of the person concerned are prejudicial to the maintenance of public order and if the two criminal cases registered against the petitioner as mentioned above as well as the aforesaid statements clearly disclose the incidents relating to law and order and not of public order. Now what is law and order and what is public order has been time and again considered by this Court as well as the Supreme Court and the distinction has been well brought out in the case of Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 : (1966 Cri LJ 608), by pointing out the classic illustration of three concentric circles (i) law and order (ii) public order and (iii) order of security of the State and that judgment has been followed uptil now by all the Courts without any exception. Now, whether a particular activity of the person concerned is only affecting law and order or it affects the public order is to be considered from the facts and circumstances of each case and by taking into consideration the totality of all such facts and circumstances. It may be that individually it may appear to be a case of law and order but when it is taken collectively it may have the effect of disturbing the public order. Therefore, it is the duty of the concerned Court hearing the detention matter whether in a particular case it is a case of disturbance to public order or it is a law and order by scrutinizing the facts of each case. Therefore, it is the duty of the concerned Court hearing the detention matter whether in a particular case it is a case of disturbance to public order or it is a law and order by scrutinizing the facts of each case. Here, in this case, it is clear from the reading of the statements that when the petitioner is there in the company of his other associates and he is committing criminal acts as mentioned in the four statements every time the even tempo of public life is disturbed inasmuch as the people ran helter shelter, shop keepers shuttered down their shops and the residents of the locality closed the doors and windows. When that is the case, Mr. Barejia, learned advocate for the petitioner, submits that the act was not done by the petitioner but by his associates and, therefore, it cannot be said that the petitioner is responsible for disturbing the even tempo of the society. It is one and the same as when the petitioner is busy with beating someone, other associates of the petitioner are running towards the people gathered there, which cannot be separated at all and when any such offence is registered naturally it would be acting in further of common intention and common object, therefore the contention of Mr. Barejia, learned advocate for the petitioner, and it cannot be said that the act was done by his associates and that it was not an act of the petitioner cannot be accepted and when the even tempo of the society is disturbed in all the four incidents which are narrated by the witnesses, it cannot be said that it is purely a question of law and order and not that of public order. Therefore, we do not find any merit in this contention also. ( 9 ) THE last contention which is raised by Mr. Barejia is with regard to the delay in disposing of the representation made by the petitioner. He submits that he made representation on 5-12-1992. He sent it from the jail. However, the Commissioner of Police rejected the same on 26-12-1992 and the Government rejected the same and communication about the rejection from the Government was received on 1-1-1993. It was further necessary to scrutinise how the said representation was received and dealt with by the concerned authorities. He sent it from the jail. However, the Commissioner of Police rejected the same on 26-12-1992 and the Government rejected the same and communication about the rejection from the Government was received on 1-1-1993. It was further necessary to scrutinise how the said representation was received and dealt with by the concerned authorities. The detenu sent six copies of the representation to the jailor and that representation is dated 5-12-1992. But it appears from the files that it was in fact given to the jailor on 18-12-1992. The jailor sent the same to various authorities as mentioned therein. The Police Commissioner of Surat, who is the detaining authority, received the same on 24-12-1992, considered the same and rejected it on 26-12-1992 and communicated to the petitioner on 27-12-1992. In that view of the matter, when the Police Commissioner has considered and disposed of the same within a period of three days, it cannot be said that there is any delay in considering the representation on the part of the detaining authority. ( 10 ) SO far as the Government is concerned, it appears that the Advisory Board was met on 20-11-1992 and it gave its report on 1-12-1992 and thereafter the jailor has sent the representation to the Advisory Board and, therefore, the Advisory Board, after receiving the same, sent it to the Government and the Government received the said copy of the representation on 23-12-1992 and it was sent to the Branch on 24-12-1992. It is clear from the calendar of the Government of Gujarat, that 25th, 26th and 27th of December 1992 were Public Holidays and on 28th December 1992 it was processed and on 29th December, 1992 it was decided and thereafter communication to that effect was sent which was received by the petitioner on 1-1-1993. Therefore, looking to the 3 days intervening holidays, it is clear that the Government has already explained the apparent delay and that should be accepted and when it is accepted, it cannot be said that it was not decided as expeditiously as possible. However, Mr. Barejia further submits that the petitioner had sent the representation to the Government directly, also through jailor. However, Mr. Barejia further submits that the petitioner had sent the representation to the Government directly, also through jailor. It is true, but it was received by the Government on 28-12-1992 and when the Government received the same after they received a copy of the same representation sent by the Advisory Board there was no question of again reconsidering the same as it was copy of the same and the said representation after receiving the same was considered along with the same on 29-12-1992. When that is so, there is no delay, Mr. Barejia points out that the representation was sent on 18-12-1992 but it was decided on 26-12-1993. But in fact, the Government has received the same on 23-12-1992 and it was sent to the branch on 24-12-1992 and 25th, 26th and 27th December, 1992 being holidays, it was processed on 28-12-1992 and rejected on 29-12-1992. Therefore, can it be said that there was any leisureness or supine indifference on the part of the Government in dealing with the representation? On this point, Mr. Shelat, learned A. P. P. has pointed out a judgment of the Supreme Court in the case of State of Tamil Nadu v. C. Subramani, AIR 1992 SC 2161 : (1992 Cri LJ 3578 ). In para 9 of the said judgment, the Supreme Court has quoted observations made by the Supreme Court in the case of K. M. Abdulla Kunhi and B. L. Abdul Kadar v. Union of India, AIR 1991 SC 574 : (1991 Cri LJ 790) which are quoted as under :"the words "as soon as may be" occurring in Cl. (5) of Art. 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. "thereafter in para 10, the Supreme Court has observed as under:"thus the question of any period taken in dealing with the representation has to be decided in the particular facts and circumstances of each case and it cannot be determined on the basis of any rigid period of time uniformly applicable to all cases. A lee-way has to be given in considering such representation by the Government and no inference of delay leading to the violation of constitutional mandate enshrined in Cl. (5) of Art. 22 can be drawn unless it shows that the authorities dealing with the representation had adopted, an attitude of leisureness, supine indifference, slackness unduly protracted procrastination or callous attitude in considering such representation. " ( 11 ) EXAMINING the facts of the present case in the light of the abovesaid judgment, it is clear that there is no leisureness or supine indifference slackness or callous attitude on the part of the Government in considering the representation. In this view of the matter, there is no substance in this contention also. ( 12 ) IN the result, as we do not find any merit in any of the contentions of Mr. Barejia, learned advocate for the petitioner, the petition fails and is dismissed. Rule discharged. Petition dismissed. .