1999 Supreme(Guj) 223

Gujarat High Court
Judgename :D.C.Srivastava
HANSKAMAL A.GROVER - Appellant
Versus
STATE - Respondent
S.C.A. 10033 of 1998
Decided On : 05/04/1999

Headnote:(a) Constitution of India, 1950 - Art. 226 - Prevention of Anti-social Activities Act - Secs. 2(h), 3(2) & 4 - Detention - Ground that detenue was property grabber & it was in the interest of public order to detain - Subjective satisfaction of detaining authority that detenue was property grabber was based on three registered criminal cases and on statements of two witnesses - Definition of property grabber is given in Sec. 2(h) and none of these ingredients are satisfied to declare the petitioner as property grabber - Court also considered the facts of three cases alleged & observed that in none of the case the property was actually grabbed by petitioner - There was therefore little material before detaining authority which could have enabled him to reach subjective satisfaction that petitioner is property grabber - That apart even if detenue is a property grabber, he could be detained under the Act only with a view to prevent him from acting in any manner prejudicial to the maintenance of public order - In this respect there is no averment of subjective satisfaction by detaining authority - In absence of any activities prejudicial to maintenance of public order impugned order of detention can not be sustained - Set aside.

       The definition of property grabber under Sec. 2(h) of PASA is thus quite wide. From the material on record it appears that none of these ingredients are satisfied to declare the petitioner as property grabber. The detaining Authority reached subjective satisfaction that the petitioner is a property grabber from three criminal cases registered against him and from the statements of two confidential witnesses. So far as the criminal cases are concerned I have already narrated the brief allegations against the petitioner. At the most it can be said that the allegation is that he committed fraud and in conspiracy with the wife and son of Shri Bipin Thakker with intention to defraud Sarvodaya Shikshan Mandal by creating false document. It is not alleged against the petitioner that he actually entered in possession or took possession of the property of the said Trust, viz., Sarvodaya Sikshan Mandal. Assuming for a moment that there was allegation of conspiracy and fraud in creating false document of title, it cannot be said that it was an act falling within one of above criteria laid down in Sec. 2(h) of the PASA to declare the petitioner as property grabber. It cannot be said that the property was actually grabbed by the petitioner.

       [Para 20]

       There was little material before the detaining Authority which could have enabled him to reach subjective satisfaction that the petitioner is a property grabber. The subjective satisfaction of the detaining Authority on this point, therefore, seems to be non-existent and in any case it was imaginary subjective satisfaction of the detaining Authority which cannot be up-held. Thus, if the petitioner can not legally be called as property grabber the order of detention passed against him has to be quashed without entering into further contentions raised by the learned Counsel for the petitioner.

       [Para 25]

       Even if for a moment subjective satisfaction of the detaining Authority on this point is accepted yet it cannot be said that the petitioner could be detained under PASA being property grabber under Sec. 2(h) of the PASA. The scheme of PASA is that the detaining Authority can detain a person only with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Unless the activities of the petitioner were such which were prejudicial for maintenance of public order, the order of detention under the PASA could not be passed. Sub-sec. (4) of Sec. 3 of the PASA makes deeming provision when a person shall be deemed to be acting in a manner prejudicial to the maintenance of public order. Under this sub-section it is clearly provided that even a property grabber cannot be preventively detained under PASA unless his activities are prejudicial for maintenance of public order.

       [Para 26]

       Learned Counsel for the petitioner rightly contended that the subjective satisfaction of the detaining Authority on this point is not shown in the grounds of detention. I have gone through the grounds of detention and I was ashtonished to see that the detaining Authority has no where recorded subjective satisfaction in clear terms that the activities or any of the activities of the petitioners were prejudicial for maintenance of public order. All that is said by him in the grounds of detention is that the detention order has been passed against the petitioner being property grabber in the interest of public order.

       [Para 27]

       Even within the extended meaning of disturbance of public order as contained in Explanation to Sub-sec. (4) of Sec. 3 of PASA such activities could not be said to have created sense or feeling of insecurity or alarm or danger to the property of public at large. If some feeling of insecurity was entertained by the Educational Trust or complainant in two criminal cases or the two witnesses it can hardly be said that such feeling could be entertained by section of the public residing in the locality. Thus, by no stretch of imagination it can be said that the activities of the petitioner were prejudicial for maintenance of public order.

       [Para 30]

       (b) Prevention of Anti-social Activities Act - Sec. 3(2) - Expression activities prejudicial for maintenance of public order - Not same as activities prejudicial for maintenance of law & order - Distinction between the two - Indicated.

       There is settled distinction between activities being prejudicial for maintenance of public order and activities prejudicial for maintenance of law and order. If the activities are prejudicial for maintenance of law and order the person indulging in such activities should be dealt with under ordinary criminal law and not that he should be detained under preventive detention law. If the ordinary criminal law is sufficient to deal with such activities of the petitioner he should not have been dealt with in that manner. If on the other hand the activities are prejudicial for maintenance of public order certainly preventive detention is justified. A situation prejudicial for maintenance of public order arises when the activity of the detenu is such which has tendency to disturb even tempo of the life of the society or the locality or the community. However, if disturbance is called to single individual though on several occasions it can not be said that such activities amount to activities prejudicial for maintenance of public order. What is required for an activity being prejudicial for maintenance of public order is that its potential effect should be on public at large or section thereof or section of the persons residing in the locality or in the vicinity where such incident takes place. After examining the statements of the two confidential witnesses as well as the allegations in the three criminal cases it can safely be said that whatever was done by the petitioner was in private and not at public place and that too his activities were confined against individual and not against public at large or a section of the public. In the first criminal case the activity of creating false and fake documents of title was confined against the registered society, though in conspiracy with two more persons, but here by such activity the society at large was not affected nor even tempo of the life of the society was not affected. Similar is the case with second incident in which the petitioner was involved in a criminal case. Here also creation of fake sale deed and fake power of attorney in conspiracy on a lonely place could not disturb even tempo of the life of the society because public at large or section of public in the locality was neither aware of such secret activity of the petitioner nor even tempo of the life of such member of public was disturbed. So far as the third incident is concerned this was also a threat to one individual and that too in the office of the petitioner and not in presence of any member of the public. The complainant was not even man handled nor he had any occasion to raise alarm whereupon the members of public collected there. As such registration of three criminal cases hardly furnish any material to conclude that the activities of the petitioner were prejudicial for maintenance of public order.

       [Para 28]

       (c) Prevention of Anti-social Activities Act - Secs. 3(2) & 9(2) - Detention - Order challenged on ground of privilege claimed under Sec. 9(2) of the Act - Name etc. of witnesses not disclosed because witnesses apprehended fear from petitioner - On the request of witnesses that their name & particulars were not disclosed - Detaining authority does not appear to accepted the report of sponsoring authority on the point blindly - He himself has examined the witnesses - On being satisfied he has extended the privilege - Thus challenge having no force rejected.

       One of the attacks against the detention order has been that the detaining Authority has claimed privilege under Sec. 9(2) of the PASA very lightly and not properly. I have gone through the detention order as well as the grounds of detention. The witnesses apprehended fear from the petitioner, hence they requested that their names, addresses, business particulars, etc. be not disclosed. The Detaining Authority did not blindly accept the report of the Sponsoring Authority on this point, rather he himself examined the witnesses before him and gave them opportunity of hearing. Upon personal verification he was satisfied that the apprehension and fear expressed by the witnesses was true. Consequentially it cannot be said that the privilege was either improperly or lightly claimed by the detaining Authority.

       [Para 14]

       (d) Prevention of Anti-social Activities Act - Sec. 3(2) - Detention - Order while petitioner already in Judicial Custody - No law that order of detention can not be passed against a person in Judicial custody - Only requirement was that detaining authority must be aware of his being in Judicial Custody - In view of averment in the order itself that petitioner was in Judicial Custody in two cases, no infermity can be held, in the impugned order of detention - Order is passed considering the possibilities of petitioner release on bail & indulging in same activities.

       Another attack against the detention order has been that the petitioner was already in judicial custody in three cases and no bail application was moved by him in any of the criminal cases, hence there was no chance or likelihood of the petitioner coming out of judicial custody and repeating his criminal activities. Consequentially the detention order was hardly required. I do not find any substance in this attack also. If the petitioner was in judicial custody and no bail application was moved by him this could not be a ground preventing the detaining Authority from passing the detention order. On the other hand the requirement of law is that the detaining Authority should have been aware while passing the detention order that the detenu was in judicial custody in some other cases. Merely because no bail application was moved by the petitioner it was no ground prohibiting the detaining Authority from passing the detention order. On the other hand if the detaining Authority from the material on record was satisfied that there was possibility that the petitioner may repeat his activities after getting released on bail he could have passed the detention order. In the grounds of detention the detaining Authority has observed that in two criminal cases the petitioner was in judicial custody and in one case he was on police remand and there were all possibilities that the petitioner may indulge and repeat his activities by getting released on bail. If there was material before the detaining Authority to satisfy his conscious that on being released on bail the petitioner may indulge in similar activities he could have passed the detention order. Since these possibilities were taken into consideration by the detaining Authority, the detention order cannot be said to be invalid.

       [Para 15]

       (e) Prevention of Anti-social Activities Act - Sec. 3(2) - Detention - Attack on ground of malafide & supply of illegible copies of documents relied upon - Grounds of malafide is based on facts alleged which can not gone into this writ jurisdiction of the Court - Contention of illegible copies is also without force because those copies have not been placed before detaining authority to appreciate the allegation.

       The next attack is that the impugned order was passed malafide and to show malafide certain allegations have been made in the writ petition against the Police Officers. However, those allegations cannot be examined in this writ petition behind the back of those Police Officers against whom such allegations have been made. Unless they were impleaded as parties and opportunity of hearing was given to them to explain the allegations made against them it cannot be a ground for quashing the detention order. Thus, this attack is also without any merit.

       [Para 16]

       The next attack has been that legible copies of all the documents referred to and relied upon by the detaining Authority were not supplied to the detenu as a result of which his right to make effective representation was adversely affected. This allegation has been suitably replied in Para : 17 of the Counter Affidavit of the detaining Authority where he has specifically mentioned that legible copies of documents, details whereof are given in this para, were supplied to the detenu. Those documents were not produced before me to enable me to ascertain that these copies were illegible copies. Consequently on this ornamental contention also the detention order cannot be quashed.

       [Para 17]