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2002 DIGILAW 493 (GUJ)

Bhupeshkumar Navnitlal Thakkar v. STATE

2002-07-04

C.K.BUCH

body2002
C. K. BUCH, J. ( 1 ) IN this petition under Art. 226 of the Constitution of India, the petitioner detenu has challenged the order of detention dated 14. 2. 2002 passed by the district Magistrate, Ahmedabad in exercise of powers under Sec. 3 (1) of the Gujarat prevention of the Anti-social Activities Act, 1985 (hereinafter referred to as the PASA act) with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. ( 2 ) HEARD Mr. Joshi learned Counsel for the petitioner and Mr. H. H. Patel learned agp for the respondents. The affidavit-in-reply tendered by the learned AGP is taken on record. ( 3 ) THE petitioner is branded as a land grabber within the meaning of Sec. 2 (h) of the PASA Act. While recording the subjective satisfaction, the District Magistrate has considered that the petitioner was Talati-cum-Mantri of village Panchayat Barwala, taluka Barwala, District Ahmedabad and at the relevant time he was Secretary to sathal Gram Panchayat, Taluka Dholka, Ahmedabad. At that time he indulged in the activity of land grabbing with one Pankajkumar Kantilal and with a view to grab the land and to help this Pankaj Kumar he tried to play mischief with the Government records so that said Pankaj Kumar can be granted that land or he can be put in possession of the land admeasuring about 1 Acre. This Pankajkumar Shroff was not an agriculturist and even then such a certificate was given to him because of the illegal help of present petitioner. ( 4 ) THE legality and validity of the order of detention is challenged on various grounds referred to in the memo of petition and the detaining authority has tried to meet with the allegations of the petitioner in the affidavit-in-reply. The say of Mr. Joshi, the learned Counsel for the petitioner is that the detaining authority while recording his subjective satisfaction has placed reliance on 3 witnesses and on the statements recorded on 19. 1. 2002 by the Mamlatdar, Dholka and verified by the Dy. Collector, revenue Division, Dholka, the petitioner was entitled to know the names of these witnesses so that he can make effective representation. But as the Detaining Authority has claimed privilege under Sec. 9 (2) of the PASA Act, he has not been given details of the witnesses whose statements were recorded. Collector, revenue Division, Dholka, the petitioner was entitled to know the names of these witnesses so that he can make effective representation. But as the Detaining Authority has claimed privilege under Sec. 9 (2) of the PASA Act, he has not been given details of the witnesses whose statements were recorded. Referring to the relevant Sec. 9 of the pasa Act. Mr. Joshi learned Counsel for the petitioner has rightly submitted that this privilege has not been claimed legally or legitimately because the detaining authority itself has to record the subjective satisfaction about the apprehension expressed by these witnesses about their safety, etc. The relevant papers are served to the detenu along with the grounds of detention but, no such statements recorded by the detaining authority, verifying the earlier statement given by these three witnesses has been served/given to the petitioner detenu. So it can be rightly inferred that either these statements are not supplied to the petitioner or there are no such statements recorded. The detaining authority itself has not verified the statement then the authority cannot exercise the privilege as provided in Sub- sec. 2 of Sec. 9 of the PASA Act. ( 5 ) IN support of this submission the learned Counsel for the petitioner has relied upon the decision in the case of Bai Amina wd/o. Ibrahim Abdul Rahim Alla vs. State of gujarat and Ors. , reported in 22 GLR 1186. Referring to Para 16 of this judgment it is rightly argued by Mr. Joshi that in the present case subjective satisfaction as to the apprehension expressed by the 3 witnesses could have been recorded by the detaining authority on verifying the statement itself and not through any subordinate or predecessor. As per the record, the statements of the three witnesses were recorded on 19. 1. 2002 by Mamlatdar, Dholka and the same were verified by the Deputy Collector on 25. 1. 2002 by visiting village Sathal. This endorsement is also interesting. The endorsement says that they confirm the earlier statements given before Mamlatdar, dholka and in lieu thereof the witnesses put the signature confirming the earlier statement. The xerox copy of the statements supplied to the detenu do not bear any indication of such signatures of the witnesses. Even the statement recorded by the mamlatdar also does not bear any indication as to the existence of the signature of the witnesses in the original. The xerox copy of the statements supplied to the detenu do not bear any indication of such signatures of the witnesses. Even the statement recorded by the mamlatdar also does not bear any indication as to the existence of the signature of the witnesses in the original. Considering the statutory requirement and the observations of this Court in the case of Zakirbhai Rahimbhai Nagori vs. District Magistrate, reported in 1996 (1) GLH 300 it shall have to be held that the claim of privilege by the detaining authority in respect of the statement of witnesses is neither legal nor proper and in accordance with the statutory requirement. The claim of privilege made by the detaining authority on the basis of some such endorsement cannot be said to be genuine and the continued detention of the petitioner-detenu cannot sustain being illegal. ( 6 ) WHILE dealing with the case of Zakirbhai Rahimbhai Nagori (Supra), the learned judge has referred to the decision of Koli Ashwin vs. State of Gujarat, in Special Civil application No. 1812 of 1993 dated 12th September, 1994. In the case of Koli Ashwin (Supra), has made certain observations which are relevant for our purpose and it would be appropriate to quote the observations as under:"however, as is well established for exercising the power under Sec. 9 (2) what is required for a detaining authority is that he must come to a subjective satisfaction himself and for that purpose he must be able to point out either in the grounds or in the contemporaneous record that he had sufficient material before him to come to that subjective satisfaction. In the instant case, in the aforesaid background of the statement of each of the witnesses when we turn to the statements for further material, which the detaining authority can make use of for arriving at a subjective satisfaction except for one word "verified" used by the Dy. S. P. who apparently has put it pursuant to an instruction received from the detaining authority for verifying the statement there is no other material. About what has been verified what were the instructions and to what extent the verifying authority himself was satisfied about the apprehension expressed, there is nothing either in the grounds of detention along with its complication or in the contemporaneous record from the office of the detaining authority. About what has been verified what were the instructions and to what extent the verifying authority himself was satisfied about the apprehension expressed, there is nothing either in the grounds of detention along with its complication or in the contemporaneous record from the office of the detaining authority. " ( 7 ) SO on facts it can be inferred that the detenu has been denied the opportunity to make effective representation as he has not been supplied with the other details of the statements of witnesses. So on this count, the continued detention of the detenu is found illegal. ( 8 ) THE say Mr. Patel the learned AGP is that in view of the decision reported in 1989 (2) GLH 420 the verification of the statement of witnesses by the detaining authority is not even as per the statute. A careful reading of this decision gives an impression that even the detaining authority intends to verify the statement and is not able to get the verification personally, it can delegate its power and can get that work done on his behalf through the subordinate officer. Whether this ratio in view of the subsequent decision of Full Bench of this Court in the case of Chandrakant N. Patel vs. State of Gujarat and Ors,, the decision of this Court in the case of Bai Amina (Supra), also would be a good law or not is not the question. Without going into the discussion on this point it would be sufficient for this Court to observe "that in the present case there are no documents available on record and served to the detenu that the detaining authority itself somewhere after 12. 1. 2002 and 21. 1. 2002 i. e. , the date of recording the statement and date of alleged verification by Deputy Collector, Dholka had directed the mamlatdar, Dholka to ascertain the correctness and genuineness of the apprehension expressed by the witness on his behalf. Therefore, it was obligatory upon the detaining authority that if such delegation of power was made in the present case, then to serve the relevant documents to the detenu being relevant and vital documents. It seems that the Sponsoring Authority had placed all the bunch of papers before the detaining authority and the privilege has been claimed. Therefore, it was obligatory upon the detaining authority that if such delegation of power was made in the present case, then to serve the relevant documents to the detenu being relevant and vital documents. It seems that the Sponsoring Authority had placed all the bunch of papers before the detaining authority and the privilege has been claimed. In this connection it would be proper to quote Para 17 of the decision in the case of Bai Amina (Supra), (considered and approved by the Full Bench in the case of Chandrakant Patel vs. State of Gujarat, reported in 1994 (1) GLR 761 = [1994 Supp (1) GCD 169 (Guj)].) as under:"17. While this question is under consideration, it would be worthwhile to point out that the detaining authority must itself be satisfied that it is against the public interest to make such disclosure. This inevitable conclusion which flows from the constitutional and legal scheme whereunder the obligation to furnish grounds and the duty to consider whether the disclosure of any facts involved therein is against public interest are both vested in the detaining authority and not in any other. The kind of the detaining authority itself should, therefore, be applied to the question whether or not the supply of the relevant particulars and materials would be injurious to the public interest. If it mechanically endorses or accepts the recommendation of an outside or inferior authority in that behalf the exercise of power would be vitiated as arbitrary see Ganga vs. Government of maharashtra, AIR 1980 SC 1744 " ( 9 ) IN the facts and circumstances the order of detention requires to be quashed and set aside. ( 10 ) FOR the reasons aforesaid this petition is allowed. Impugned order of detention dated 14. 2. 2002 passed by the District Magistrate, Ahmedabad is hereby quashed and set aside. The detenu Bhupeshkumar Navnitlal Thakkar is ordered to be set at liberty forthwith if he is not required to be detained in any other cases. Rule is made absolute. Direct Service is permitted. .