NAVALSINH CHANDANSINH RAJPUT v. STATE — 1993 DIGILAW 558 (GUJ)

SONI, J. ( 1 ) PETITIONER-DETENU has challenged the legality and validity of the order of detention dated 10-5-1993 passed by the Police Commissioner, ahmedabad City, in exercise of powers conferred under Sec. 3 (2) of the gujarat Prevention of Anti-Social Activities Act, 1985 (PASA ). ( 2 ) THE petitioner was supplied with the grounds and relevant material, the basis on which the grounds were formulated, along with the order of detention, as provided in Sec. 9 (1) of PASA. The grounds, in substance, read as under : that the detenu, with his associates Kanji Rabari, Ashok Marvadi and others, carries on anti-social criminal activity of possessing and selling desi as well as foreign liquor in the area of Saranyavas and Bhavaninagar of odhav area of Ahmedabad City. In view of this activity, two offences are registered against the detenu as shown in the table in the grounds. This activity of the detenu being injurious to the health of the public, it is alleged that the activity is prejudicial to the maintenance of public order. As many as four persons have stated, referring to the incidents, to the effect that the activities of the detenu are prejudicial to the maintenance of public order. With a view to prevent the detenu from such activities the present order of detention is passed. Four witnesses who have deposed against the detenu have claimed anonymity and accepting the seriousness of the fear expressed by them, the detaining authority has claimed privilege under Sec. 9 (2) of PASA. ( 3 ) LEARNED Counsel Mr. A. R. Thakkar has challenged this order of detention on number of grounds as stated in the memo of petition as well as in the course of the oral submissions. As we propose to allow this petition on one of the grounds mentioned hereunder, we do not deal with other contentions raised by the learned Counsel for the petitioner. ( 4 ) MR. Thakkar, learned Counsel, has contended that the privilege claimed by the detaining authority under Sec. 9 (2) of PASA is not a genuine one. While examining this contention and verifying from the record as to the dates of the proposal, statements, verification and the order, it transpired that the proposal does not bear any date. In view of this fact, mr. While examining this contention and verifying from the record as to the dates of the proposal, statements, verification and the order, it transpired that the proposal does not bear any date. In view of this fact, mr. Thakkar contended that as the proposal does not bear any date, it is difficult to decide whether there is any delay in passing the order of detention. Mr. Thakkar also contended, on the basis of absence of date in the proposal, that as this Court is not able to examine whether there is any delay in passing the order of detention, the order of detention is vitiated. Mr. Thakkar also contended that in view of the fact that the detaining authority has not looked into the proposal properly and has not noticed whether it bears the date or not, the order of detention suffers from non-application of mind. Mr. Thakkar, therefore, contended that the order of detention is liable to be quashed and set aside. Mr. Thakkar stated that the proposal does not bear any date. However, the statements of alleged four witnesses are dated 7-5-1993 and 8-5-1993. Mr. Thakkar contended that the said statements are verified on 9-5-1993 and 10-5-1993 and the order of detention is passed on 10-5-1993. However, in absence of date of proposal, it is difficult or it cannot be said as to whether there is any delay in passing the order of detention and, therefore, the detention is vitiated and is liable to be quashed. ( 5 ) MR. D. C. Dave, learned A. P. P. appearing for the respondents, contended before us that non-mention of date in the proposal does not affect the order of detention in any manner. Apart from this, Mr. Dave contended that from the affidavit and other material on record, it can be made out that the proposal is dated 9-5-1993. Mr. Dave also relied on the affidavit filed by the sponsoring authority, wherein the sponsoring authority has stated :"i submit that from the conjoint reading of the aforesaid dates, it becomes evidently crystal clear that the said proposal ought to have been placed by me before the detaining authority on 9-5-1993". Mr. Dave, therefore, contended that from the record and the affidavit of the sponsoring authority when the date of proposal can be inferred to be 9-5-1993, there is no substance in the contention of Mr. Mr. Dave, therefore, contended that from the record and the affidavit of the sponsoring authority when the date of proposal can be inferred to be 9-5-1993, there is no substance in the contention of Mr. Thakkar that there was either any delay in passing the order or non-mention of date vitiates the order or it can be said that there is non-application of mind on the part of the detaining authority. Mr. Dave also took us through the record, wherein the detaining authority has passed an order directing the superintendent of Police to verify the statements recorded by the sponsoring authority. Mr. Dave also took us through the record wherein the Superintendent of Police, who was directed by the detaining authority to verify the statements, has directed the sponsoring authority to keep the witnesses present and in response to the same, the sponsoring authority has kept the alleged witnesses present before the Superintendent of Police, who was directed by the detaining authority to verify the statements. Mr. Dave also took us through the correspondence whereby the detaining authority has directed the Superintendent of Police on 9-5-1993 to verify the statements. Mr. Dave, therefore, contended that in view of the affidavit filed by the sponsoring authority as well as from the record, it can very well be inferred that the date of proposal is 9-5-1993. Mr. Dave, therefore, contended that absence of date on the letter of proposal does not affect adversely the order of detention. ( 6 ) WE have given our anxious thought and consideration to the contention raised by Mr. Thakkar for the petitioner and the reply given by Mr. Dave. It is a fact that proposal does not bear any date. It is also clear from the record that in response to the alleged letter of 9-5- 1993 when the Superintendent of Police wrote a letter to the sponsoring authority to keep the witnesses present on the basis of the noting, the said noting also does not bear any date. In response to the letter of superintendent of Police when the sponsoring authority has kept the witnesses present and has made a noting to that effect, that noting also does not bear any date. In response to the letter of superintendent of Police when the sponsoring authority has kept the witnesses present and has made a noting to that effect, that noting also does not bear any date. Only date available on record is 9-5-1993 on a letter, whereby the detaining authority has asked the Superintendent of Police to verify the statements and thereafter the dates on the statements as well as the date of the order of detention. ( 7 ) LETTER of proposal is a basic document, on the basis of which the proceedings for the purpose of action for detention are commenced. If the said letter does not bear any date, then it is very difficult to say as to from what date the proposal and the necessary proceedings have commenced. It may happen that the alleged statements of the witnesses might have been recorded either prior to the letter of proposal or might have been recorded subsequent to the letter of the detaining authority to verify the statements. When a question of personal liberty is involved, any mistake which may lead to infer illegality or which may infer non-application of mind on the part of the detaining authority cannot be permitted to allow or cannot be condoned. ( 8 ) MR. Dave has further contended that mere mistake of stating the date will not vitiate the order. In support of his contention, he has relied on a judgment in the case of Pushpadevi M. Jatia v. M. L. Wadhavan and Ors. , reported in AIR 1987 SC 1748 . There, the Supreme Court has observed as under :"29. It is quite apparent that the so-called factual misstatements are not mifistate-ments at all. The High Court rightly held that the alleged mistakes or infirmities pointed out were not so material or serious in nature as to vitiate the impugned order of detention. As already indicated, sufficiency of the grounds is for the detaining authority and not for the Court It cannot be said on a perusal of the grounds that there was no material on which the detaining authority could have acted. "in that case, the Supreme Court has held that the alleged factual misstatements were not misstatements at all. It is further held the alleged mistakes or infirmities pointed cut were not so material or serious in nature as to vitiate the impugned order of detention. "in that case, the Supreme Court has held that the alleged factual misstatements were not misstatements at all. It is further held the alleged mistakes or infirmities pointed cut were not so material or serious in nature as to vitiate the impugned order of detention. From these observations, it can be said that mistake or infirmity pointed out if not material or serious, it may not affect the impugned order. In the instant case, the proposal is a basic document and non-mentioning of date therein cannot be said to be not a material or serious defect in its nature. In our opinion, the date in proposal has a bearing for consideration as to whether the order of detention passed is passed without undue delay. It is difficult to decide as to whether there was any delay in passing the order or not when we had not with us the point of beginning to count and such a document or a mistake therein cannot be said to be neither material nor serious one. Thus, in our opinion, the mistake in not stating the date in the proposal is serious and a material infirmity in the document. ( 9 ) MR. Dave also relied on a judgment in the case of Kamarunnissa v. Union of India, AIR 1991 SC 1640 . There, the Supreme Court has taken into consideration the explanation of the authority when it has stated that the particular offence was a bailable one. There, in the facts and circumstances of that case, the explanation of the concerned officer was accepted by the court. Here, in the instant case, the sponsoring authority has in the affidavit only stated that "from the conjoint reading of the aforesaid dates it becomes evidently crystal clear that the said proposal ought to have been placed by me before the detaining authority on 9-5-1993. " This affidavit at the most discloses that the proposal was placed before the detaining authority on 9- 5-1993 and that is also the inference on the part of the authority. In our opinion, when a basic document does not bear the date, which has its implications for considering other factors to decide the legality or otherwise of the detention, the said mistake cannot be said to be not a material or serious one. In our opinion, when a basic document does not bear the date, which has its implications for considering other factors to decide the legality or otherwise of the detention, the said mistake cannot be said to be not a material or serious one. In view of these facts, in our opinion, the order of detention is vitiated and is liable to be quashed and we hereby quash the same. ( 10 ) IN the result, the petition is allowed. The detention order is quashed and set aside. Rule is made absolute. Respondent No. 3 is directed to set the detenu at liberty forthwith, if not required to be detained in any other criminal proceedings. .