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1997 Supreme(Guj) 96
Gujarat High Court
Judgename :M.S.Parikh
Mohmad Salim @ Salim Khan - Appellant
Versus
Police Commissioner - Respondent
S.C.A. 10505 of 1996
Decided On : 02/12/1997
Headnote:(a) Gujarat Prevention of Anti Social Activities Act, 1985 - Sec. 3(1) - Detention order - Non-application of mind - Contention that defence being already in jail there was no necessity of impugned order - Held, detaining authority has considered the ground alleged - He has recorded his subjective satisfaction & observed that detenue has not preferred any bail application but he might be enlarged on bail in case he would prefer such bail application - It can not be said that subjective satisfaction of the detaining authority is unfounded.
The detaining authority has recorded his subjective satisfaction by asserting in the grounds themselves that the petitioner has not preferred any bail application and he might be enlarged on bail in case he would prefer such bail application. That is how the present case stands on a different footing vis-a-vis the ground on which the impugned order of detention is sought to be assailed. In the present case it cannot be said that the subjective satisfaction of the detaining authority is unfounded. This Court cannot enter into the merits of the aforesaid cases for the purpose of finding out whether the petitioner might be bailed out or not by the appropriate Court. In that view of the matter, this ground of challenge to the impugned order of detention cannot be accepted.
[Para 5]
(b) Gujarat Prevention of Anti Social Activities Act, 1985 - Sec. 3(2) - Detention order - Incident affecting law & order or prejudicial to the maintenance of public order - Apex Court in case Harpreet Kaur Harvinder Singh Bedi (Mrs.) vs. State of Maharashtra & Anr., AIR 1992 SC 979, held, that creating a feeling of insecurity amongst those likely to depose against detenue as also against law enforcement agencies would constitute activities prejudicial to maintenance of public order - Facts of present case legitimately call for application of the above decision.
The Apex Court reverted to the facts of the case and found that they would adversely affect the even tempo of the society by creating a feeling of insecurity amongst those who were likely to depose against the detenu as also the law enforcement agencies. The fear psychosis created by the detenu in the witness was aimed at letting the crime go unpunished which had the potential to make the society, and not merely some individual, to suffer. It was held that the activities of the detenu were not merely prejudicial to the maintenance of law and order, but were prejudicial to the maintenance of public order.
[Para 14]
( 1 ) BY way of this petition under Art. 226 of the Constitution of India the petitioner-detenu has brought under challenge the detention order dated 5/7/1996 passed by the respondent No. 1 under Sec. 3 (1) of the Gujarat Prevention of Anti-Social activities Act, 1985 (Act No. 16 of 1985), (for short "the PASA Act" ).
( 2 ) THE grounds on which the impugned order of detention has been passed appear at annexure-C. They inter-alia indicate that the petitioner by himself and with the aid of his associates Sabirkhan Pathan and others have been indulging in unlawful and criminal activities of committing thefts of motor vehicles and have been creating a feeling of insecurity amongst the vehicles owners. Following offences have been registered against the petitioner: S. No.
Police Station
CR No. IPC
Sections of Property/ recovery/ disposal.
Stolen
1.
Vejalpur
42/96
379, 114
Maruti van of Rs. 2 lacs
same pending investigation.
2.
Ellisbridge
178/96
379, 114
Maruti van valued Rs.
60,000/- same pending
investigation.
3.
Satellite
219/96
379, 114
Tata Estate valued Rs.
4,50,000/- same
pending inve stigation.
4.
Navrangpura
294/96
379, 114
Motor cycle valued Rs.
20,000/- same pending
investigation.
it has further been recited that the petitioner and his associates were involved in the offences of robbery and dacoity. The police had an information that petitioner and his associates had assembled in the estate located behind Shere Punjab Hotel near Chandola lake with an intention to commit decoity. Upon the police raiding the place, the petitioner and his associates with the aid of one another opened firing on the police party and attempted to commit murder by causing hurt to the police person/s. This resulted in the police counteracting and opening firing. Persons of both the parties ultimately came to be injured in the encounter. As a result of this incident, following offence came to be registered against the petitioner and his associates in the Ahmedabad City DCB Police station :cr No. 8/96 under Secs. 399, 400, 307, 114 of the IPC read with Secs. 25 (1) (B) and 27 of the Arms Act and Sec. 135 (1) of the Bombay Police Act. Fire arms deadly weapons were recovered and the investigation has been shown to be in progress on the date of the order of the detention. It has, therefore, been inter-alia recited that the detenus anti-social activity tends to obstruct maintenance of public order and the petitioner has been stamped as a "dangerous person" within the meaning of Sec. 2 (c) of the PASA Act.
( 3 ) PROCEEDING further to consider the necessity of detaining the petitioner, who was in judicial custody, the detaining authority has referred to the statements of four witnesses in respect of unregistered incidents dated 7/4/1996 and 29/4/1996. It has been asserted that at about 5. 00 oclock in evening of 7/4/1996 the petitioner demanded Rs. 500/- from the concerned witness, who having given Rs. 200/- only, was threatened. He was brought on to the public road opposite Ganj Shahid Dargah and beaten. On the witness having shouted for help people collected at the place of the incident, the petitioner and his associates rushed to the people with weapons resulting in atmosphere of fear amongst the people collected there. Similar is the pattern of the incident dated 29/4/1996, which occurred around 12. 30 Oclock in the after-noon, the cause of the incident being non-payment of price of goods purchased by the petitioner and his associates.
( 4 ) THE detaining authority has also asserted that it has become necessary to preventively detain the petitioner as at any time he might apply for bail and get himself released in any of the offences registered against him. The petitioner has been supplied with all the papers on which reliance has been placed by the detaining authority.
( 5 ) I have heard the learned advocate appearing for the petitioner and the Ld. GP for the State. The pet
