1999 Supreme(Guj) 247

Gujarat High Court
Judgename :R.M.Doshit
Vanrajsinh Danubha Jadeja - Appellant
Versus
STATE - Respondent
S.C.A. 167 of 1999
Decided On : 05/11/1999

Headnote:(a) Gujarat Prevention of Anti-Social Activities Act, 1985 - Sec. 3(2) - Detention - Delay in passing impugned order of detention - Refering the affidavit filed by Detaining Authority - Court observed that the last of the offences against petitioner was registered in the month of Jan, 1998 & investigation continued upto June, 1998 & charge sheet was submitted on 13th June, 1998 - Considering the facts & nature of offence Court held that it cannot be said that delay caused in passing the impugned order is fatal or that it is vitiated on that account.

        (b) Gujarat Prevention of Anti-Social Activities Act, 1985 - Sec. 3(2) - Detention - Law & order or public order - Indisputably petitioner is engaged in activities of manufacturing & selling of country liquor & other anti social activities - Such activities of bootlegging has under Sec. 3 (4) of the Act been deemed to be prejudicial to maintenance of the public order - Explanation to said sub-section makes it clear & it cannot be said that activities of petitioner does not create problem to the maintenance of public order.

       It is indisputable that the petitioner is alleged to have been indulging in the activities of manufacturing and selling of country liquor and other anti-social activities. Such activities of bootlegging has under Sec. 3(4) of the Act, been deemed to be `prejudicial to the maintenance of the public order. The explanation to the said sub-section provides, inter alia, that for the purpose of the said sub-section, public order shall be deemed to have affected adversely, if such activity 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 or property or public health.

       [Para 7]

       In the matters of Popat Mohan [Supra] and Chandulal Jethalal [Supra], the Division Bench of this Court had an occasion to consider the order of preventive detention made under the Act on account of the concerned detenus dealing in illicit country liquor by manufacturing, storing and selling the same to the people. The Court considering the provisions contained in Sec. 3(4) of the Act and the explanation thereto gave an extended meaning to the words `public order. The Court held that for the purpose of the said sub-section, the term `public order had been given extended meaning under the explanation thereto. The Court further held that `consumption of country liquor by a large number of people itself is a danger to the public health. This is a matter of commonsense and such a reasonable inference has got to be drawn by having recourse to the experience of life. In the matter of Chandulal Jethalal Jayswal [Supra], it is held that, `. . . . It is, therefore, clear that if there is any activity of a boot legger which is prejudicial to the maintenance of public order within the enlarge meaning of Sub-sec. (4) of Sec. 3 of the Act that would be the material on the basis of which subjective satisfaction can be arrived at. The Court further held that, `. . . when the petitioner was not having any licence as provided under the Rules, the legitimate inference that can be drawn on the facts and circumstances of the case is that he was storing the same with an intention to sell it to the bootleggers who would use it after diluting the same as country liquor [LATTHA] contrary to the provisions of the Act and relevant rules.

       [Para 7.2]

       (c) Gujarat Prevention of Anti-Social Activities Act, 1985 - Secs. 3(2) & 9(2) - Detention - Challenged on ground that Detaining Authority claimed privilege about identity of witnesses without verifying the necessity to do so - Court upon perusal of papers found that Detaining Authority & investigating officer who recorded the statement of witnesses have made categorical statements on oath that they considered the material on record & satisfied that apprehension voiced by witnesses were genuine from petitioner, but their statement are not supported by the material on record - In view of the said lapse on the part of Detaining Authority order of detention is vitiated.

       Upon perusal of the papers, it appears that the concerned police officer who recorded the statements of witnesses has verified the statements given by the witnesses and also the genuineness of the apprehension voiced by such witness. Besides, even the Detaining Authority, the District Magistrate, has made a categorical statement on oath that he had carefully examined and had personally verified the genuineness and correctness of the statements of witnesses. He was satisfied that the apprehension voiced by the witnesses were genuine and that there identity was required to be withheld from the petitioner. However, the said statements are not supported by the material on record. The same, therefore, cannot be believed. The necessity of such verification by the Detaining Authority himself has been dealt with in extenso by this Court in the matter of Bai Amina, Wd/o. Ibrahim Abdul Rahim Alla vs. State of Gujarat & Ors. [1981 GLR 1186]. The Court on facts held that, `failure to disclose the names of persons who made the statements which are relied upon in the second ground has resulted in grave prejudice to the petitioner by denial to her of the right of effective representation against the detention. The Court further held that,`the Detaining Authority must itself be satisfied that it is against the public interest to make such discloser. In the present case also, the Detaining Authority has casually stated about his personal verification which is not supported by the material on record. Therefore, in view of the aforesaid judgment, this lapse on the part of the Detaining Authority shall vitiate the order of detention.

       [Para 8]