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1999 DIGILAW 571 (GUJ)

BHUPAT v. STATE

1999-10-05

C.K.THAKKER, K.M.MEHTA

body1999
C. K. THAKKER, J. ( 1 ) THIS appeal is filed against the dismissal of Special Civil Application No. 1215 of 1999 by the learned single Judge on August 16, 1999. ( 2 ) THE appellant was the original petitioner. He was detained under the Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as "the Act" ). ( 3 ) THE detaining authority-Commissioner of Police, Baroda City was satisfied that with preventing the detenu from acting in a manner prejudicial to the maintenance of public order, it was necessary to detain the detenu, and hence, by an order dated December 17, 1998 the appellant was ordered to be detained. On the same day, grounds of detention were supplied, inter alia, alleging therein that the detenu was a "bootlegger" within the meaning of Sec. 2 (b) of the Act and his activities were found to be prejudicial to the maintenance of public order. Three offences punishable under Bombay Prohibition Act were also registered against the detenu. In each of those cases, the detenu was found to be in possession of country liquor. Moreover, three individuals, on assurance of anonymity, gave statements in respect of anti-social activities of the detenu and its adverse effect on public order. On those grounds, an order of detention was passed. ( 4 ) A petition was filed against the order of detention by the detenu and three grounds were raised before the learned single judge. Firstly, it was contended that there was long and undue delay on the part of the detaining authority in passing the order of detention against the detenu and as there was no live link and causal connection between the alleged offences and subjective satisfaction, the same was vitiated. Secondly, the fact regarding previous detention was taken into account by the detaining authority, but the relevant papers relating to the previous detention were not supplied nor the grounds in support of order of previous detention were furnished, thereby depriving the detenu from making effective representation which was violative of Art. 22 (5) of the Constitution of India. Thirdly, a representation made to the detaining authority on 13-2-1999 and received on 14-2-1999 had not been considered by the detaining authority at all, and hence, the continued detention was illegal and contrary to law. ( 5 ) THE learned single Judge rejected all the contentions and dismissed the petition. Thirdly, a representation made to the detaining authority on 13-2-1999 and received on 14-2-1999 had not been considered by the detaining authority at all, and hence, the continued detention was illegal and contrary to law. ( 5 ) THE learned single Judge rejected all the contentions and dismissed the petition. ( 6 ) BEFORE us, all the three contentions were reiterated by the learned Counsel for the appellant. It is, however, not necessary to enter into first two contentions, as in our opinion, the third contention deserves to be accepted. ( 7 ) IT was the case of the detenu that against an order of detention a representation was made by him to the detaining authority on 13-2-1999 which was received by the office of the Police Commissioner, Vadodara on the next day, i. e. on 14-2-1999. It is not even the case of the respondent that it was considered and rejected. The question, therefore, is whether the continued detention of the detenu was contrary to law. ( 8 ) THE learned single Judge negatived the said contention. In para 6, the learned single Judge observed :"the continuity of these incidents has maintained the link with the cause of action, and the subjective satisfaction recorded by the detaining authority cannot be vitiated on the ground of delay. Ms. Pahwa has produced AD slip in support of her contention that the representation made on 13th February, 1999 was delivered on 14th February, 1999. Upon perusal of the said AD slip I find that the said slip is addressed to Shri K. N. Sharma, Police Commissioner, Vadodara City. The said slip does not bear any date, either in the front or on the reverse. A stamp of clerk to the office of the Commissioner of Police, Vadodara city appears on the acknowledgment side of the slip and bears some signature and has been forwarded to the Surat City and bears the stamp of the office Superintendent, Police Commissioner, Surat City. The same, however, is not signed. Thus, neither the said slip bears a date nor the signature of the concerned clerk in the office of the Commissioner of Police, Surat City nor the stamp of the post office. The same, however, is not signed. Thus, neither the said slip bears a date nor the signature of the concerned clerk in the office of the Commissioner of Police, Surat City nor the stamp of the post office. In view of the affidavit made by the detaining authority and the categorical denial of the receipt of the representation, it is not possible to hold on the basis of the AD slip produced by Ms. Pahwa, that the said representation was delivered in the office of the detaining authority, as alleged. " ( 9 ) IN our opinion, the contention of the learned Counsel for the appellant is well-founded. Even from the order passed by the learned single Judge, it is clear that the representation was made by the detenu and was received by vadodara office. From the narration of facts by the learned single Judge extracted hereinabove, it is not in dispute that the representation was made to the detaining authority by the detenu on 13-2-1999, which was delivered on 14-2-1999. From the AD slip, the learned single Judge had noted that it was addressed to Shri k. N. Sharma, Police Commissioner, Vadodara City (detaining authority ). The learned single Judge further observed that the said AD slip did not bear any date either in the front or on the reverse. It was, however, noted that a stamp of clerk to the office of the Commissioner of Police, Vadodara City appeared on the acknowledgment side of the slip and had some signature. The learned single Judge further noted that it had been forwarded to the Surat City probably, because by that tune, the detaining authority was transferred to Surat. The learned single Judge then observed in the order that though the representation was forwarded to Surat, there was no evidence to show whether the office of commissioner of Police, Surat City received the representation or not. In affidavit-in-reply, it was stated that the representation was not received by Surat office. It, therefore, cannot be said in the opinion of the learned single Judge that by not disposing of the representation illegality was committed. In affidavit-in-reply, it was stated that the representation was not received by Surat office. It, therefore, cannot be said in the opinion of the learned single Judge that by not disposing of the representation illegality was committed. ( 10 ) IN our opinion, the question which deserves to be considered and which ought to have been considered was not whether the representation of the detenu was received by the Commissioner of Police, Surat, but whether the detenu had made a representation and whether the said representation was addressed to proper authority. When the detenu had made a representation to the detaining authority, i. e. Police Commissioner, Vadodara City on 13-2-1999 and it was received by vadodara office on the next day, i. e. on 14-2-1999, subsequent sending of representation by that office, i. e. Office of the Police Commissioner, Vadodara city to the office of the Police Commissioner, Surat City in view of transfer of Police Commissioner, Baroda City to Surat City in the intervening period cannot deprive the detenu in getting his representation considered in accordance with law. It cannot be construed as non-making of representation by the detenu to detaining authority. Non-disposal of such representation by the detaining authority who was in the meanwhile transferred to Surat cannot absolve him from the liability to consider and decide it in accordance with law. ( 11 ) THE matter did not end there. Even at the time of disposal of petition on August 16, 1999 the representation was not disposed of which was made on 13-2-1999, i. e. before more than six months. Once the representation was made by the detenu on 13-2-1999 to the detaining authority and was received in the office of detaining authority on the next day, i. e. 14-2-1999, even if in the meanwhile the detaining authority might have been transferred, it was obligatory on the part of the authorities to take appropriate steps for consideration of such representation by such authority. Non-receipt of representation by the commissioner of Police, Surat City who was transferred from Baroda to Surat cannot be a ground for non-consideration of such representation which was the right of the detenu. ( 12 ) FOR the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The order of detention passed against the appellant deserves to be quashed and set aside. ( 12 ) FOR the foregoing reasons, in our opinion, the appeal deserves to be allowed and is accordingly allowed. The order of detention passed against the appellant deserves to be quashed and set aside. It is hereby set aside and the detenu is directed to be set at liberty forthwith unless his presence is required for any other case. No order as to costs. Application allowed. .