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1996 Supreme(Guj) 636
Gujarat High Court
Judgename :N.N.MATHUR
ELESH NANDUBHAI PATEL - Appellant
Versus
C.P.SINGH, COMMISSIONER OF police, AHMEDABAD CITY - Respondent
S.C.A. 8631 of 1996
Decided On : 12/27/1996
Headnote:(a) Constitution of India, 1950 - Art. 266 - Detention - Malafides - Heavy burden on person making allegations to prove - Except bold statement made by petitioner no evidence to substantiate the allegation - On the contrary all the persons concerned have filed their affidavits to controvert - Challenge directed against order of detention on ground of malafides fails and accordingly rejected.
It is well settled position of law that the burden of establishing malafide is very heavy on the person who alleges it. The allegation of malafides are often very easily made than proved and the very seriousness of such allegations demand proof of a high order of credibility. In the present case, except bare statements of the petitioner, there is no material worth the name to say that the impugned order of detention has been passed at the instance of respondents No. 3 and No. 4. The allegations have been denied on oath by the respondent No. 3 Shri Shankersinh Vaghela as well as respondent No. 4 Shri Atmaram Patel.
[Para 5]
Considering the affidavits, I have no reason to disbelieve the statements made by the respondent No.1, No.3 and No.4 on oath, more particularly when there is no material placed on record by the petitioner to substantiate the allegations. In view of this, the challenge of the order of detention on the ground of malafides fails and is accordingly, rejected.
[Para 6]
(b) Constitution of India, 1950 - Art. 226 - Detention - Disturbing public order - Going through the cases leaving aside unregistered court found petitioner has a tendency to repeat acts disturbing the public order and therefore subjective satisfaction arrived on by detaining authority call for no interference - However considering the long gap between the last occurrence and order of detention, continued detention of petitioner is not desirable - Order vitiated - Set aside.
The facts of the case are of such a nature wherein reasonable inference must be drawn that the petitioner has a tendency which is likely to repeat such acts disturbing the public order. The subjective satisfaction of the detaining authority calls for no interference.
[Para 19]
Though I have found the conduct of the petitioner of serious nature, but at the same time, in my view, having regard to the long gap between the ocurrence and the order of detention, the continued detention of the petitioner is not desirable.
[Para 20]
The last registered case is of may 20, 1996. The petitioner detenue was granted anticipatory bail by the competent court. He was also granted regular bail subsequently. The impugned order of detention has been passed on November 05,1996 i.e. after a delay of 5 months and 15 days. It is of course true that the detaining authority has relied on two incidents of 2nd October and 10th October 1996, both unregistered cases. I have gone through the allegations. I fail to understand if the allegations are really of such a grievous nature, why the cases have not been registered against the petitioner. There appears to be some substance in the contention of the petitioner that these two unregistered cases have been referred only with a view to cover up the gap or to give life to a stale case. This unexplained delay makes a ground of detention not proximate, vitiating the order of detention itself.
[Para 21]
Important Point : Long gap between occurrence & order of detention vitiates the order itself.
( 1 ) BY way of this Special Civil Application under Art. 226 of the Constitution, the petitioner has challenged the order of detention dated 5-11- 1996. The subjective satisfaction of the Police Commissioner, Ahmedabad, who directed the detention, is based upon two criminal adventures of the petitioner dated march 10, 1995 and May 20, 1995, and two unregistered incidents of 2-10-1996 and 10-10-1996.
( 2 ) THE petitioner-detenu claims to be a reputed business man carrying on the business of building constructions in the city of Ahmedabad. The petitioner says that he is a strong party worker of Bharatiya Janata Party and a very strong supporter of Shri Keshubhai Patel, a former Chief Minister of Gujarat State. He further says that the day Shri Keshubhai Patel became the Chief Minister, the petitioner was pinching like a throne in the body of respondent No. 3, viz. , Shri Shankersinh vaghela, now the Chief Minister of Gujarat. Immediately after the respondent No. 3 was sworn as the Chief Minister of State of Gujarat on October 23, 1996, the machinery of the State Government has been in motion to harass the petitioner. The impugned order of detention was passed by respondent No. 1 at the instance of respondent Nos. 3 and 4 mala fidely. The petitioner has also made allegations of mala fide against the respondent No. 4 Shri Atmaram Patel, Minister for Revenue in the State of Gujarat. It is asserted that, after the respondent No. 3 became the chief Minister, he has shown his colour of power by moving the machinery to frame a case against the petitioner.
( 3 ) THE petitioner has challenged the impugned order of detention on various grounds, including the ground of mala fides. I would like to first deal with the ground of mala fides. Shri Shankersinh Vaghela, in his affidavit dated November 8, 1996, denied the allegation that the order of detention has been passed by the respondent No. 1 shri C. P. Singh under his instructions. He has also denied that there is frustration in his mind, as alleged by the petitioner. After the amendment of the petition, second affidavit dated December 23, 1996 has been filed by Shri Shankersinh Vaghela. He has denied that, having come to power, he has shown colour of power by moving the State machinery to frame a case against the petitioner. It is also stated that the allegations made against him in the petition are mere bare assertion, not supported by any material whatsoever and are incapable of being accepted. It is also stated that it is a mere co-incident of the order of detention having been passed against the detenu after October 23, 1996, which has been over-played by the detenu for challenging the order of detention on the ground of mala fide. Similarly, Shri Atmaram Patel, respondent No. 4 has also denied to have given any instruction to anybody including the respondent No. 1 for detaining the petitioner. He has further submitted that he has been wrongly joined as a party to the petition only with a view to give political colour to his detention and such an attempt on the part of the petitioner to malign the public orders of the State deserves to be condemned. He has asserted that he has not played any role in the subjective satisfaction arrived at by the detaining authority.
( 4 ) THE respondent No. 1 Shri C. P. Singh, Commissioner of Police, Ahmedabad city, in his affidavit dated November 8, 1996, has categorically stated that neither the respondent No. 3 nor respondent No. 4 has exercised any influence on him, while passing the impugned order of detention. In his second affidavit dated december 21, 1996 filed after the amendment of the petition, he has stated that the order of detention has been passed by him after considering the gravity of the prejudicial activities carried by the petitioner and it is not passed at the instance of the third respondent or anybody else. He has also denied that the order of detention has been passed to harass the petitioner.
( 5 ) IT is well s
