Back
Gujarat High Court
Judgename :K.J.VAIDYA
YAKUB ISMAIL CHHIPA - Appellant
Versus
DISTRICT MAGISTRATE,bharuch - Respondent
S.C.A. 4058 of 1995
Decided On : 07/07/1995
Since the petitioner has made out a clear case of non-application of mind it is indeed not possible to sustain the impugned order of detention any further.
[Para 6]
Words and Phrases - Subjective satisfaction - Under Preventive Detention Law - Meaning - Explained.
This expression subjective satisfaction is constituted of two words !! Subjective and Satisfaction. In the context in which the term "satisfaction" has been used indicates that there must be a state of mind which has satisfied or contented occasioned by some facts, events or state of things." Bearing in mind the above dictionary meanings of subjective satisfaction it means thatsatisfying oneself. Accordingly, the subjective satisfaction means in the first instance, the personal satisfaction of the concerned detaining authority himself ony and none else and as a necessary corollary thereof, in the second instance therefore it can not be tested or set-aside on the objective test. This is the distinct and extra-ordinary characteristic of the detention power/order which once found to be validly exercised passed on the subjective satisfaction, then no Court, not even the High Court and for that purpose efven the Apex Court can interfere with and unsettle the same exercising their powers as an appellate authority save and except where on some settled grounds judicial reviews is available !!
[Para 6]
Preventive Detention law - Nature and Purpose - Explained.
The detention law is just like an open electric-circuit which if short-circuits and/or contacted accidentally-even, the same never permits of any mistake to spare anybody sometimes even from electrocution costing the precious life as well !! And accordingly, in that view of the matter, when the question involved is that of the detention of any citizen without trial and it is found out that there is either a breach of some procedural safeguards enshrined in the Act and/or the Constitution of India or non-application of mind, or any such point which ultimately vitiates the subjective satisfaction of the Detaining Authority, etc. etc. then in that case it is the duty of the court to quash and set-aside the detention order!! The preventive detention is an extra-ordinary measure investing, extra-ordinary powers whereby the precious liberty of the citizen can be snapped and put to an end for the stipulated period like the fall of lightening on any object and accordingly such unusually wide powers of sending any person behind the bars without trial are required to be sparingly, scrupulously and guardedly exercised with full sense of accountability. The Detaining Authority is expected to pass an order of detention not on any rough and ready material furnished to him by his subordinate officer, including the grounds of detention and detention order by just signing the same without the real subjective satisfaction.
[Para 6]
Bombay Prohibition Act, 1949 - Secs. 66(b), 65(e) & 81 - Offences under - Are non bailable - Grant of bail by Police officer - Held, beyond power thus illegal.
It is simply strange as to how wherein the offence is perse non-bailable, a police station officer could ever have released the acused on bail !! In fact the power to release the accused on bail in cases of non-bailable offences stands vested in the Appropriate Courts only !! And yet the concerned PSU arrogating the said power unto himself has dared to illegally release the detenu on bail defying the express legal bounds in the Code !! Such illegal police practices are scandlous enough and fraught with very many dangerous proposition and is clear and gross transfression of Law!
[Para 5]
( 1 ) "subjective Satisfaction". What it is ? What indeed is its scope and purport, and accordingly therefore, the true meaning of it, is the subjectmatter of discussion in this petition, so as to understand its implication in proper perspective, vis-a-vis the aspect of Non-application of mind, more often urged and also occasionally allowed declaring ab initio invalid the impugned order of detention.
( 2 ) YAKUB Ismail Chhipa, by this petition under Art. 226 of the Constitution of India, has moved this Court challenging the impugned order of detention dated 21-10-1994, passed against him under Sec. 3 (2) of the Gujarat Prevention of Anti- social Activities Act, 1985, by the District Magistrate, Bharuch, inter alia praying for quashing and setting aside the same and to set him at liberty forthwith. He has been detained as a "bootlegger", as defined in Sec. 2 (b) of the PASA, on several allegations as stated in detail in the grounds of detention. 2a. Mr. H. R. Prajapati, the learned Advocate while challenging the impunged order of detention has vehemently contended that since the said order suffers from the patent vice of the non-application of mind on the part of the Detaining Authority, the same deserves to be quashed and set aside at-once and accordingly the petitioner be set at liaberty forthwith. Making good this contention, Mr. Prajapati has invited attention of this Court to the relevant portion of one of the grounds of the detention which pertains to the complaint No. 7 wherein it is alleged that "on 15-6-1994 at 16-40 hours the police personnel of Nabipura Police Station had arrested the petitioner and his associates when they were found transporting 90 litres of country liquor in a rickshaw bearing No. GRV-2658. Accordingly on the very day, the offences unde Secs. 66 (b), 65 (e) and 81 of the Bombay Prohibition Act, 1949, came to be registered against the petitioner as C. R. No. III-169/94 at Nabipura Police station, wherein he was ultimately released on bail in sum of Rs. 500. 00 on his executing the personal bond of the like amount. It is further stated in the alleged grounds of detention that since these offences were bailable, as per the usual practice, on the accused furnishing surieties and filling up the personal bond before the concerned police station officer itself, he is immediately released on bail. In such cases of bailable offences, it is indeed not necessary to submit any bail application or for that purpose to pass any order thereunder. Mr. Prajapati thus after laying the factual foundation for his arguments from the grounds of detention has invited the attention of this Court to Sec. 119 of the Prohibition Act, 1949, wherein it is specifically provided that the offences under Sec. 65, 67, 67 (1) (a) and 68 of the act shall be non-bailable offences. According to Mr. Prajapati under the circumstances despite the fact that the alleged offence under Sec. 65 (e) is a nonbailable offence, still however, amazingly enough in the grounds of detention, signed by no less an authority then the District Magistrate himself, it has been described as a bailable offence. According to the learned Advocate Mr. Prajapati this is quite startling and ex-facie demonstrates non-application of mind on the part of the detaining Authority. Remotely, even if the concerned police officer somehow committing the alleged mistake whereby despite the alleged offence being under sec. 65 (e) a non-bailable, he released the petitioner on bail without producing him before the Court which was the only competent functionary under the Code to pass order of bail, but then the Detaining Authority, an experienced, seasoned officer will certainly not commit such a patent mistake. It is from this angle only that had indeed the Detaining Authority himself prepared the grounds of detention then the glaring mistake like the one that has crept-in in the present case would not have occurred at all. Thus, this serious mistake according t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
