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1995 Supreme(Guj) 290
Gujarat High Court
Judgename :K.J.VAIDYA
KANTIBHAI BHIKHABHAI BHIL - Appellant
Versus
K.P.KAUSHIK,police COMMISSIONER,rajkot - Respondent
L.P.A. 4044 of 1994
Decided On : 07/11/1995
Headnote:Gujarat Prevention of Ant-isocial Activities Act, 1985 - Sec 3(3) - Preventive detention under - For alleged breach of public order - Petitioner detained as a bootlegger - Fear of retaliation entertained by witnesses - Held, in the instant case it constitutes breach of public order and not merely law and order as contended by petitioner - Detention, therefore, sustainable on this ground.
Though prima facie the activities alleged against the petitioner of beating and terrorizing few individuals (witnesses) may not fall within the purview of the activities as prejudicial to the maintenance of `public order, but at the sametime, reading the said statements of witnesses alongwith the threat administrated to them of taking their lives and/or causing grievious hurt of them in event of their reporting the illegal activities to the police cannot be toned-down to mere breach of law and order as it has indeed to immediate reach and wider impact upon the public order as viewed by the Supreme Court in case of Mrs. Harprit Kaur (supra). Fear of retaliation entertained by the witnesses do constitute the breach of public order, this Court must sustain as of duty, the impugned order of detention.
[Para 6]
Gujarat Prevention of Antisocial Activities Act, 1985 - Sec.3(3) - Constitution of India, 1950 - Art. 22 (5) - Right to make effective representation - Supply of illegible copies of documents - Held, right under article 22(5) is denied - Impugned detention therefore quashed.
When the document in question is to be in part little hard on eye and the part of which is wholly illegible, the embarassment felt by the petitioner in making an effective representation is quite understandable and cannot be ignored or under-estimated. In this view of the matter, the illegibility of the document as described above clearly goes to prima facie establish that the petitioner has been denied his precious right guaranteed under Article 22(5) of the Constitution of India to make an effective representation. Once this position is accpeted, the Court must declare the further and continued detention of the petitioner as illegal and unconstitutional.
[Para 7]
Constitution of India, 1950 - Art. 141 - Precedent - Applicability - Judgment in Harprit Kaur vs. State of Mah., AIR 1992 SC 979 case - Explained and Applied.
Since the view taken by the Supreme Court in case of Mrs. Harprit Kaur very much prevails as a good law till today and this Court accordingly is duty bound to follow and uphold the same.
[Para 6]
( 1 ) BY this Habeas-Corpus petition under Article 226 of the Constitution of India the petitioner has brought under challenge the impugned order of detention dated 17. 9. 1994 passed against him in exercise of powers under Section 3 of the Gujarat Prevention of Anti-Social Activities Act 1985 (for short PASA) by the Police Commissioner Rajkot City interalia praying for quashing and setting aside the same and to set him at liberty forthwith. The petitioner came to be detained as a bootlegger.
( 2 ) MR. Anil S. Dave the learned advocate appearing for the petitioner while challenging the impugned order of detention has raised two contentions. Firstly placing reliance upon two decisions of the Supreme Court rendered in case of (i) Mustakmiya Jabbarmiya Shaikh vs. M. M. Mehta Commissioner of Police and Ors. reported in 1995 (3) SCC 237 and (2) Piyush Kantilal Mehta vs. Commissioner of Police Ahmedabad reported in AIR 1989 SC 491 it was contended that since the fact-situation in said two cases allegedly disturbing the public order was held to be disturbing the law and order only is virtually the same as found from the alleged grounds of detention in the present case the impugned order of detention deserves to be quashed and set-aside atonce on that ground alone. Mr. Dave further submitted that in case this Court was not inclined to accept his aforesaid first contention then having regard to the fact that one of the copy of the material documents supplied to the petitioner was illegible in absence of adequate communication of the material ground of detention the petitioner having been denied his Constitutional right to make an effective representation his said precious right to that extent stands infringed under Article 22 (5) of the Constitution of Inida and accordingly therefore the petitioners further and continued detention should be declared illegal and unconstitutional. 2. 1 Making good the aforesaid first contention Mr. Dave has invited attention of this Court to the alleged grounds of detention where as many as 10 Prohibition cases appear to have been registered against the petitioner at Rajkot Taluka Police Station. All these offences were registered right from the year 1992 till the year 1994 under various sections of the Bombay Prohibition Act 1949 Mr. Dave thereafter has also invited the attention of this court to the statements of as many as five witnesses who is unmistakable terms have apprehended danger to their respective life and liberty from the petitioner in case their identity was disclosed to him by giving out their names and addresses. Thereafter Mr. Dave has actually read the contents of the statements of those five witnesses and submitted that the allegations made therein are identical one as that of the statement of witnesses relied upon in case of Piyush Kantilal Mehta and Mustak Miya (supra) and in that view of the matter since in those decisions it has been held that the alleged activities pertain to the law and order and not the public order it was beyond the scope and power of the Detaining Authority to pass an order of detention under PASA in the instant case also2. 2 Thereafter making good the second point Mr. Dave pointed out that since one of the copy of the material documents at page-16 supplied to the petitioner on the basis of which the impugned order of detention came to be passed was ex-facie illegible his precious right to make an effective representation under Article 22 (5) of the Constitution of India stands violated and accordingly therefore his further continued detention he declared as illegal and unconstitutional. In support of this contention Mr. Dave has relied upon the decision of this Court rendered in case of Pukhrajbhai vs. District Magistrate Surat reported in 32 (1991) GLR 725.
( 3 ) MR. M. R. Rawal the learned AGP appearing for respondents vehemently opposing the first contention submitted that the order of detention is passed on the material available on re
