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1999 DIGILAW 306 (GUJ)

GANESH DURGAPRASAD ALIAS DWARKAPRASAD KAHAR v. COMMISSIONER OF POLICE

1999-06-22

R.M.DOSHIT

body1999
R. M. DOSHIT, J. ( 1 ) HEARD the learned advocates for the respective parties. ( 2 ) THE petitioner challenges the order of preventive detention dated 20th August, 1998 made by the Commissioner of Police, Vadodara City under the powers conferred upon him under Sub-section (2) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (hereinafter referred to as the Act ). ( 3 ) ALONG with the order of detention, the petitioner has been served with the grounds of detention and the petitioner has also been furnished the supporting material. Upon perusal of the grounds of detention, it appears that the petitioner is alleged to be a bootlegger within the meaning of Sec. 2 (b) of the Act. As many as nine offences have been registered against the petitioner for violation of Prohibition Law, and are pending for trial before the concerned Courts. These offences have been registered within a period of two and half years. The last of the offences has been registered on 30th June, 1998. In all the said offences, the petitioner was arrested and was released on furnishing bail. After his release on bail, the petitioner is alleged to have continued his nefarious activities which are found from the statements of the witnesses recorded by the concerned authority and relied upon by the detaining authority. All the three witnesses have stated that on the dates of respective incidents, the petitioner was found to have been carrying liquor and that the petitioner picked up quarrel with the witness and had beaten him. The petitioner had also threatened the people who had gathered there by wielding lethal weapon, and the people had to run away from the spot. ( 4 ) MR. Patel, the learned advocate appearing for the petitioner, has assailed the impugned order of detention on the grounds (a) the petitioners representation dated 2 2/08/1998 made to the Honble Home Minister had not been attended to with promptitude; (b) though the petitioner had requested for copies of the reports of the Chemical Analyzer in each of the prohibition cases registered against him, the same have not been supplied to the petitioner; (c) prohibition offences have been registered against the petitioner during the years 1996, 1997 and 1998. However the order of detention has been made two months thereafter i. e. on 20/08/1998; (d) the detaining authority has not personally verified the genuineness of apprehension voiced by Witness No. 3 and the privilege claimed under Sec. 9 (2) of the Act in respect of the said witness No. 3 was, therefore, not justiciable. ( 5 ) MR. Patel further submitted that on account of nonsupply of the reports of the Chemical Analyzer, the petitioner has been deprived of his right to make effective representation. This has vitiated the continued detention of the petitioner. He has submitted that the delay in making the order of detention discloses that the detention of the petitioner was not warranted. He has further submitted that Witness No. 3 is likely to be a fictitious person and had the identity of the said witness no. 3 been disclosed, the petitioner could have effectively demonstrated that the said witness no. 3 was not a real person. He has also submitted that on account of the above referred infirmities, the subjective satisfaction recorded by the detaining authority is vitiated, and also the order of detention. He has also submitted that no relevant material was before the detaining authority and the order of detention made on the nonexisting material suffers from the vice of non-application of mind. In support of his contentions, he has relied upon the judgments of this court in the matters of AMARSINGH CHATURSING CHAUHAN vs. THE COMMISSIONER OF POLICE AND OTHERS (Special Civil Application No. 1633 of 1993 decided on 2 6/07/1994 (Coram: Mr. Justice S. Chatterji and Mr. Justice A. N. Divecha); of BAI AMINA W/o IBRAHIM ABDUL RAHIM ALLA vs STATE OF GUJARAT AND OTHERS, (1981 G. L. R. 1186), and of KALIDAS CHANDUBHAI KAHAR vs. STATE OF GUJARAT and ORS. (1993 (2) G. L. R. 1659); and of SAGARBHAI GANESHBHAI DESAI vs PGJ NAMPUTHIRI (Special Civil Application No. 1662 of 1997 decided on 1 1/03/1997 (Coram: Mr. Justice M. S. Parikh ). He has also relied upon the Supreme Court judgment in the matter of RAJAMMAL vs. STATE OF TAMIL NADU AND ANOTHER, AIR 1999 SC 684 . (1993 (2) G. L. R. 1659); and of SAGARBHAI GANESHBHAI DESAI vs PGJ NAMPUTHIRI (Special Civil Application No. 1662 of 1997 decided on 1 1/03/1997 (Coram: Mr. Justice M. S. Parikh ). He has also relied upon the Supreme Court judgment in the matter of RAJAMMAL vs. STATE OF TAMIL NADU AND ANOTHER, AIR 1999 SC 684 . ( 6 ) IN the matter of Amarsingh (supra), this court has held that the documents like recovery panchnama, statements of witnesses and report of Chemical Analyzer in a case pending investigation were vital documents and they ought to be furnished to the detenu. In the matter of Bai Amina (supra), the Division Bench of this court has dealt with significance and importance of the verification of the genuineness of the apprehension voiced by the witness. In paragraph 16 of the judgment, the court has held that "the mere fact that relevant particulars and materials are furnished to the detaining authority in confidence by some person is not by itself a sufficient ground for withholding the disclosure of such particulars and materials, if they have been relied upon against the detenu and their disclosure would assist the detenu in making an effective representation. The private promise of confidentiality must yield to the general public interest that is served by communication of such particulars and materials to the detenu in order to enable him to make an effective representation. Confidentiality is not a head of privilege, it is a consideration to bear in mind only if a more important public interest is served by protecting the particulars and materials from disclosure to the detenu either by reason of the nature and character or class of such particulars and materials or on account of a clear, certain and imminent danger of the sources of such particulars and materials drying up due to fear of reprisal, thus rendering the very exercise of power of detention nugatory". It is further held that "the detaining authority must itself be satisfied that it is against the public interest to make such disclosure ". Same is the view expressed by this court in the matter of Kalidas (supra ). It is further held that "the detaining authority must itself be satisfied that it is against the public interest to make such disclosure ". Same is the view expressed by this court in the matter of Kalidas (supra ). In the matter of Sagarbhai (supra), on the facts the court held that the order of detention made in the month of February, 1997 on the basis of the offences registered during the period from July 1996 to November, 1996 would be vitiated on account of vice of delay. ( 7 ) THE petition is contested by Ms. Hansaben Punani, the learned Assistant Government Pleader. She has submitted that the representation dated 22th August, 1998 sent to the Honble Home Minister on 24th August, 1998 was received by that office on 25/08/1998 and was immediately attended to. It was sent to the concerned section on 2 7/08/1998 and was under consideration by the concerned section on 28th August, 1998 and 2 9/08/1998. 30/08/1998 was a holiday. The order was made on 31/08/1998 and was communicated to the petitioner on the same day. In above view of the matter, there being no undue delay in disposing of the petitioners representation, the judgment in the matter of Rajammal (supra) relied upon by Mr. Patel shall have no applicability. 23/6/1999 In this view of the matter, I am of the view that the petitioners representation has been attended to promptly without any avoidable delay which should vitiate the continued detention of the petitioner. It is further submitted that even in the course of investigation of the offences registered against the petitioner, the Muddamal recovered from the petitioner were not sent for examination by the Chemical Analyzer. No report of the Chemical Analyzer is, therefore, in existence and no such report is relied upon by the detaining authority. Hence the petitioners demand for nonexistent documents could not have been accepted and the order of detention would not be vitiated on account of non-supply of reports of the Chemical Analyzer. It is indisputable that the last of the offences has been registered against the petitioner on 30/06/1998, and further information in the form of statements of the witnesses was received on 9/08/1998 and 11/08/1998. The statements of witness nos. 1 and 2 were examined by the detaining authority and the verification was personally done by him on 1 4/08/1998. It is indisputable that the last of the offences has been registered against the petitioner on 30/06/1998, and further information in the form of statements of the witnesses was received on 9/08/1998 and 11/08/1998. The statements of witness nos. 1 and 2 were examined by the detaining authority and the verification was personally done by him on 1 4/08/1998. Thereafter, after perusal of the record, the subjective satisfaction has been arrived at by the detaining authority and the grounds of detention have been drawn. The order of detention made on 20th August, 1998, in my view, cannot be said to have been made after inexplicable delay. Having regard to the nature of offences alleged to have been committed by the petitioner repeatedly inspite of his arrest and release on bail in each of the said cases and having regard to the incidents narrated by the witnesses, it cannot be said that the order of detention is not proximate to the offences committed by the petitioner. As many as five prohibition cases have been registered against the petitioner in the first half of the year 1998. It is true that the detaining authority has not verified the genuineness of the apprehension voiced by the third witness. As it is evident from the record and from the affidavit made by the detaining authority, the genuineness of the apprehension voiced by the third witness had not been verified by the detaining authority personally. In view of the judgment of this court in the matter of Bai Amina (supra), disclosure of the identity is absolutely necessary, unless the detaining authority finds it necessary to withhold the same under the powers conferred upon him under Sec. 9 (2) of the Act for the reasons of security and safety of the witness and if he feels that unless such safety is assured, such information would not have been coming forth. However the question is whether the detaining authority is required to make verification personally. If yes, whether on account of want of personal verification of the statement made by one of the witnesses, the order of detention would be vitiated as being violative of Article 22 (5) of the Constitution of India. In my view, in view of Section 6 of the Act, such infirmity shall not vitiate the order of detention in the case like the present one. In my view, in view of Section 6 of the Act, such infirmity shall not vitiate the order of detention in the case like the present one. In the present case, the order of detention is not based on one statement alone. Apart from the said statement, the order of detention has been based on the offences registered against the petitioner and the statements made by the other two witnesses. Therefore, there are more than one ground to detain the petitioner. Section 6 of the Act provides, inter alia, that when a person has been detained under the order made on two or more grounds, such order of detention shall be deemed to have been made separately on each ground and accordingly such order shall not be deemed to be invalid or inoperative, merely because one or some of the grounds is/are, inter alia, nonexistent or not connected or not proximately connected with such person. Even if the statement made by witness no. 3, having not been verified by the detaining authority himself, is required to be ignored and considered to be non-existant or not connected with the petitioner, there are other grounds on which the order of detention is based which are severable. In view of the clear mandate provided in Section 6 of the Act, the order of detention cannot be invalidated or made inoperative on account of the statement of the third witness being considered non-existant. ( 8 ) AT this stage, Mr. Patel has relied upon the judgment of this court (myself) delivered in the case of RELIA DHANJIBHAI KHIMJBHAI KOLI vs. RAJKUMAR (Special Civil Application No. 9053 of 1998 decided on 14th June, 1999 ). In the said case, the statements were recorded on 28th and 2 9/05/1998 and the order of detention was made on 31/05/1998. The court, therefore, held that the detaining authority had no time or proximity of the dates did not leave sufficient time to verify the correctness of the statements and apprehension voiced by the concerned witnesses. The said judgment shall, however have no applicability on the facts of the present case. As it is recorded hereinabove, the statements of the concerned witnesses were recorded on 9/08/1998 and were verified on 14/08/1998. The order of detention was made on 20th August, 1998. The said judgment shall, however have no applicability on the facts of the present case. As it is recorded hereinabove, the statements of the concerned witnesses were recorded on 9/08/1998 and were verified on 14/08/1998. The order of detention was made on 20th August, 1998. This shall leave sufficient time to the concerned authority to examine the credibility of the witnesses and correctness of the statements made by them. Besides, the detaining authority has made categorical statement that he was personally satisfied about the same. Mr. Patel has next relied upon the judgment of this court in the matter of MUSTAKBHAI ISABHAI JUNEJA vs. STATE OF GUJARAT [ ( Special Civil Application No. 7834 of 1997 decided on 24th November, 1997 (Coram: Mr. Justice H. R. Shelat) ]. In the said matter, the court has held that, " When the detaining authority refers to the associates of the detenu, it would be necessary for the authority to furnish necessary particulars about those associates, provided it is possible so to do. " In my view, on the facts of the present case, this judgment shall not lend support to the petitioner. In the present case, as it is referred to hereinabove, as many as nine offences have been registered against the petitioner. The F. I. R. in each of the said offences refers to the accomplices disclosing names and role played by them. It, therefore, cannot be said that the petitioner is not made aware of ( 9 ) AT this stage, the learned advocate Mr. Patel seeks time. S. O. to 14/07/1999. 19-7-1999 ( 10 ) MR. Patel has submitted that in the case like the present one, provisions contained in Sec. 6 of the Act would not be attracted. He, therefore, relied upon the judgments of the Supreme Court and this Court in the matters of Dharamdas Shamlal Agarwal Vs. The Police Commissioner and another, (AIR 1989 SUPREME COURT 1282); of Rajnikant Uttamram Vankawala Vs. P. K. BANSAL, POLICE COMMISSIONER AND OTHERS, ( 1988 (2) G. L. H. 276); and of VIKRAMSINH PRAVINSINH RANA VS. STATE OF GUJARAT and ANR, 29 (2) G. L. R. 1336. In the matter of Dharamdas Shamlal Agarwal (supra), in the ground of detention, five criminal cases were shown to be pending against the detenu. P. K. BANSAL, POLICE COMMISSIONER AND OTHERS, ( 1988 (2) G. L. H. 276); and of VIKRAMSINH PRAVINSINH RANA VS. STATE OF GUJARAT and ANR, 29 (2) G. L. R. 1336. In the matter of Dharamdas Shamlal Agarwal (supra), in the ground of detention, five criminal cases were shown to be pending against the detenu. However, in fact, in two of the said five cases, the detenu was already acquitted before the date of detention. In the matter of Rajnikant (supra), the detenu was shown to be in judicial custody in some cases pending against him. However, in the said cases, before the date of detention, the detenu was enlarged on bail. The fact that the detenu was enlarged on bail was not taken into consideration by the detaining authority. In both the above matters, the respective court held that the concerned fact was vital for arriving at the subjective satisfaction by the detaining authority. Had the said facts been brought to the notice of the concerned detaining authority, it could have considered the said fact and such consideration could have affected the subjective satisfaction reached by the concerned authority. In both the above cases, the court held that the subjective satisfaction arrived at by the detaining authority was not comprehensive; i. e. not based on the comprehensive materials, and as such the subjective satisfaction recorded by the detaining authority was vitiated. In the matter of Vikramsinh (supra), the court found that some of the documents furnished to the detenu were not legible. The court, therefore, held that the said infirmity amounted to non-communication of the relevant ground of detention. The court, therefore, held that non-communication of ground of detention would not fall in any of the categories enumerated under Sec. 6 of the Act and as such the provisions contained in Sec. 6 of the Act would not be attracted. ( 11 ) I am of the view that neither of the above judgments shall have applicability to the facts of the present case. As discussed above, it is not the case, where subjective satisfaction is vitiated on account of relevant material having not been taken into consideration, nor it is the case of non-communication of ground on which the subjective satisfaction is based. It is a clear case of one of the grounds being non-existent, or at the most bad. As discussed above, it is not the case, where subjective satisfaction is vitiated on account of relevant material having not been taken into consideration, nor it is the case of non-communication of ground on which the subjective satisfaction is based. It is a clear case of one of the grounds being non-existent, or at the most bad. This should not render the order of detention invalid or inoperative. Even otherwise, it is not necessary that the detaining authority ought to have recorded verification personally. What is required is the subjective satisfaction of the detaining authority. For arriving at the subjective satisfaction, he himself has to apply his mind on the material placed before him. If at all, he has any doubt about the veracity of the statement recorded, either he himself can verify the same or he can ask any other subordinate officer to verify the same. The detaining authority can also verify the statement through the officer who has recorded the same. There is no statutory provision for verifying such statement by the detaining authority through the person other then those who recorded the same. ( Reference could be had to in re. Bhikhabhai Thakorlal Patel Vs. Commissioner of Police, Surat City and Others, 1989 (2) G. L. H. 420 ). As it is recorded above, in the present case also the sponsoring authority had verified the veracity of the statements made by the witnesses and the detaining authority has recorded his personal satisfaction also. Therefore also, it cannot be said that the subjective satisfaction recorded by the detaining authority is vitiated. ( 12 ) FOR the reasons recorded hereinabove, the petition is dismissed. Rule is discharged. .