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1999 Supreme(Guj) 87
Gujarat High Court
Judgename :D.C.Srivastava
PREMSING - Appellant
Versus
STATE - Respondent
S.C.A. 135 of 1999
Decided On : 03/03/1999
Headnote:(a) Prevention of Anti-social Activities Act, 1985 - Sec. 3(2) - Detention - Delay - Period of delay cannot be computed from date of registration of last offence - Rather it has to be computed from the date of commission of last offence - In the case last offence is alleged to have been committed by petitioner on 15.5.1998 & impugned order is passed on 16.6.1998 - Intervention of merely 30 days cannot be said to be inordinate delay - Hence impugned order of detention is not rendered invalid on the account of delay.
It is difficult to compute the delay only from the date of registration of last offence. The delay has to be computed from the date of commission of last offence and last offence was committed by the petitioner on 15.5.1998. Though it was unregistered offence, on the face value of the statements of the witness narrating incident dated 15.5.1998 it cannot be said to be false. After this incident dated 15.5.1998 some time must have been taken by the sponsoring authority to collect material and prepare report. The report was submitted to the Detaining Authority who after examining the same passed the impugned order on 16.6.1998 and hence period of 30 days intervened and this cannot be said to be inordinate delay.
Hence, the impugned order of detention is not rendered invalid on account of delay in its passing.
[Para 4]
(b) Prevention of Anti-social Activities Act, 1985 - Sec. 3(2) - Detention - Non-application of mind - Petitioner committed offence punishable under Chapter XVII only while in translation of grounds of detention Chapter XVI is also mentioned - Held, it would not give material to infer non-application of mind by detaining authority - It is firstly because in the opening portion of grounds of detention the detaining Authority has mentioned Chapter No. XVII of IPC alone & Secondly if statement of second confidential witness is scrutinised the offence committed by petitioner on that date was capable of division in two parts - One of which is covered under Chapter XVI IPC - In that back drop of facts it cannot be said that impugned order of detention suffers from any vice of non-application of mind.
The next contention has been that in the ground of detention, the Detaining Authority observed that the petitioner committed offences punishable under Chapters XVI & XVII of the IPC, whereas the petitioner committed offence punishable under Chapter XVII only and this indicates non application of mind by the Detaining Authority. This ground also cannot be accepted. In the opening portion of the grounds of detention, the Detaining Authority in para 2 has mentioned that the petitioner committed offences punishable under Chapter XVII of the IPC between years 1996 to 1998. It at page 8 of the translation of grounds of detention mention was made regarding commission of offence under Chapters XVI & XVII IPC, it does not mean that it was a case of non application of mind. If the statement of second confidential witness, who narrated the incident dated 15.5.1998, is scrutinised it indicates that the offence committed by the petitioner on that date was capable of division in two parts. The first was in relation to the witness and the second was in relation to members of public who were injured by the petitioner. Thus, causing injuries to the members of the public gives indication that offence punishable under Chapter XVI IPC was also committed by the petitioner. In view of this matter, it cannot be said that the Detaining Authority did not apply its mind to the provisions of Chapters XVI & XVII of IPC.
[Para 5]
(c) Prevention of Anti-social Activities Act, 1985 - Sec. 3(2) - Detention - Maintenance of public order - Activities prejudicial for maintenance of public order is required to be understood in the way the legislature has defined under Sec. 3(4) and also with the extended meaning of it given in explanation there under - Viewed in this angle the activities of petitioner as proved on record can certainly be said to be prejudicial for maintenance of public order.
Activities in any manner prejudicial for maintenance of public order have to be understood in the way the legislature has defined the same under Sec. 3(4) of PASA and also in view of extended meaning of disturbance of public order as contained in explanation to Sub-sec. (4) of Sec. 3 of PASA. The explanation to Sub-sec. (4) of Sec. 3 provides that for the purposes of this sub-section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, inter alia, if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section. thereof or a grave or widespread danger to life, property or public health. It is, therefore, clear from this indirectly causing or is likely to cause harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health detention order will be justified.
[Para 14]
Examining the statements of two confidential witnesses in the light of explanation to Sub-sec. (4) of Sec. 3 of PASA, it is clear that it was not an incident confined between the petitioner and two witnesses on two dates. Of course the witnesses were involved initially, but on their alarm when members of the public from vicinity collected and also persons passing on vehicles collected and attempted to intervene and save the witnesses they too were not spared and were beaten and injured with sword, knife and razor etc. On both the occasions, threat was given to the witnesses not to approach the police otherwise in one case the witness along with rickshaw would be set on fire and in the other case the witness would be killed. These two incidents therefore, created situation prejudicial for maintenance of public order in as much as a section of the public was affected and fear and alarm was created in their mind and they received injuries as well. The activities in any manner prejudicial for maintenance of public order have to be understood in the way the legislature has defined the same under Sec. 3(4) of PASA and also in view of extended meaning of disturbance of public order as given by the legislature in explanation to Sub-sec. (4) of Sec. 3 of PASA. Viewed in this angle the activities of the petitioner can certainly be said to be prejudicial for maintenance of public order.
[Para 15]
( 1 ) IN this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the detention order dated 16. 6. 1998 passed by the Commissioner of Police, Surat City under section 3 (2) of the prevention of Antisocial Activities Act, 1985 (for short pasa) and has prayed that the said order be quashed and he be released from illegal detention.
( 2 ) FROM the grounds of detention, Annexure "b" it seems that the Detaining Authority declared the petitioner to be dangerous person on the basis of five registered offences, four under section 379 IPC and the fifth under sections 392, 387 and 117 IPC as well as from the statements of two confidential witnesses. It was further found that the activities of the petitioner were prejudicial for maintenance of public order. Lesser alternative remedies other than preventive detention were also considered by the Detaining Authority who found that except preventive detention other remedies were inefficacious. Accordingly, the impugned order was passed.
( 3 ) IMPUGNED order has been challenged mainly on four grounds.
( 4 ) ONE of the grounds of challenge is that the detention order as computed from registration of last offence was passed after considerable delay. Hence, it has been rendered illegal and invalid. In support of this contention reliance has been placed upon the case of Pradeep Nilkanth Paturkar Vs. Ramamurthi and others, AIR 1994 SC pg. 656. The facts of this case were that the detention order was passed on the basis of statements of witnesses as well as on the basis of registered cases against the detenu after five months and eight days from registration of last case and more than four months from submission of proposal. This case is apparently distinguishable on facts from the case under consideration. The grounds of detention show that the last offence against the petitioner was registered on 22. 7. 1997. The detention order was passed on 16. 6. 1998. However, two confidential witnesses gave statements disclosing incidents which took place on 7. 4. 1998 and 15. 5. 1998 respectively. It is, therefore, difficult to compute the delay only from the date of registration of last offence. The delay has to be computed from the date of commission of last offence and last offence was committed by the petitioner on 15. 5. 198. Though it was unregistered offence, on the face value of the statements of the witness narrating incident dated 15. 5. 1998 it cannot be said to be false. After this incident dated 15. 5. 1998 some time must have been taken by the sponsoring authority to collect material and prepare report. The report was submitted to the Detaining Authority who after examining the same passed the impugned order on 16. 6. 1998 and hence period of 30 days intervened and this cannot be said to be inordinate delay. The delay in the case of Pradeep Nilkanth (Supra) was five months and eight days from the registration of the last case and four months from submission of proposal. These two dates do not fit in the facts of the case before me. Hence, the impugned order of detention is not rendered invalid on account of delay in its passing.
( 5 ) THE next contention has been that in the grounds of detention, the Detaining Authority observed that the petitioner committed offences punishable under chapters XVI and XVII of the IPC, whereas the petitioner committed offence punishable under Chapter XVII only and this indicates non application of mind by the Detaining Authority. This ground also cannot be accepted. In the opening portion of the grounds of detention, the Detaining Authority in para 2 has mentioned that the petitioner committed offences punishable under Chapter XVII of the IPC between years 1996 to 1998. If at page 8 of the translation of grounds of detention mention was made regarding commission of offences under chapters XVI and XVII IPC, it does not mean that it was a case of non application of mind. If the statement of second confide
