1996 Supreme(Guj) 486

Gujarat High Court
Judgename :M.R.CALLA
Rajendra Bachubhai Rathod - Appellant
Versus
Commissioner of Police - Respondent
S.C.A. 3879 of 1996
Decided On : 10/04/1996

Headnote:(a) Constitution of India, 1950 - Art. 226 - Prevention of Anti-Social Activities Act, 1985 - Detention under the Act - Non-supply of details relating to Latthakand - One of the grounds alleged against detenu was about his involvement in sale of country made liquour and reference to Latthakand was merely by way of narrating consequences of such sale - It was not alleged that detenue was involved in Latthakand - In that view of the matter non-supply of details about Lathhakand not fatal.

       So far as the non supply of the details with regard to the Latthakand is concerned it may be straight way observed that the reference has been made to the Latthakand only by way of narrating consequences of the unauthorised sale of the country liquor. It has not been alleged by the Detaining Authority against the petitioner that the petitioner was involved in Latthakand. All that has been observed by the Detaining Authority is that if the petitioner keeps engaged in antisocial activities of unauthorised sale of country liquor, incident like Latthakand may be repeated. Keeping in view the context in which the reference has been made to the Latthakand in the grounds of detention, I do not find that it was at all necessary for the Detaining Authority to have supplied the papers with regard to Latthakand to the petitioner.

       [Para 6]

       (b) Gujarat Prevention of Anti-Social Activities Act, 1985 - Sec. 3 - Detention under - Non-supply of details of his associates - In absence of petitioners failure to show that any prejudice has been caused to him on that account contention fails.

       The ground of non-supply of the details and names of the petitioners associates despite the demand is hardly sufficient in the facts of the present case and the petitioner has failed to show that any prejudice has been caused to his right of representation on account of non-supply of details of the associates and therefore this contention raised on behalf of the petitioner fails.

       [Para 7]

       (c) Gujarat Prevention of Anti-Social Activities Act, 1985 - Sec. 9(2) - Claim of privilege - Sustainability - Privilege claimed by Detaining Authority is based on the verification of statement of witnesses and after coming to the conclusion that account of terror & fear created by petitioner apprehension of witnesses was genuine & that it was not in public interest to disclose the identity of witnesses - Opinion of Detaining Authority based on material on record and as such contention has no force.

       The privilege claimed by the Detaining Authority under Sec. 9 (2) under PASA is based on the verification of the statement of the witnesses and after verification of the whereabouts of the witnesses and after considering the statements made by the witnesses the Detaining Authority has come to the conclusion that on account of the terror of the petitioner and the fear psychosis created by the petitioner the apprehension of the witnesses was genuine and it was not found to be in public interest to disclose their identity. This opinion formed by the Detaining Authority cannot be said to have been found without any material and in my opinion the privilege claimed under Sec. 9 (2) of the PASA Act is genuine and therefore, this contention raised on behalf of the petitioner also fails.

       [Para 8]

       (d) Gujarat Prevention of Anti-Social Activities Act, 1985 - Secs. 2(b), 3 & 4 - Detention - Breach of public order or Law & order - Touch stone to test indicated & held that in the present case there was no material which could constitute a case of breach of public order against present detenue-petitioner - Order of petitioner detenue therefore quashed.

       The touch stone to test the breach of public order or the activities prejudicial to it, is the nature of antisocial activities exceeding the breach of law and order so as to cross the limits of criminal and unlawful activities against an individual or individuals, to militate against the public in general and community or society as a whole, adversely affecting the even tempo of the society, posing a threat to the very existence and normal and routine life of the people at large, putting the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law.

       [Para 16]

       In the facts of this case on the comparison of the present case with the allegations in several cases of the Supreme Court and Division Bench of this Court, I am satisfied that in the present case there was no material which could be said to constitute a case of breach of public order against the present detenu-petitioner.

       [Para 17]

       Important Point : Test of breach of public order is the nature of activities which make it difficult for whole system to exist as a system governed by rule of law.