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Gujarat High Court
Judgename :D.H.Waghela
KESHUBHAI MADIYABHAI KATARA - Appellant
Versus
COMMISSIONER OF POLICE OF THE CITY OF AHMEDABAD - Respondent
Special Civil Application 6771 Of 2007
Decided On : 08/29/2007
Whether activities of petitioner constituted or affected public order requiring detention of petitioners under the Act?
Head Note :
Gujarat Prevention of Anti-social Activities Act, 1985 (16 of 1985) - Sections 2(c), 3 and 9 - [Indian] Penal Code, 1860 (45 of 1860) - Sections 454, 457, 388 read with 457 and 387 - Detention - Dangerous persons - Satisfaction of detaining authority - Challenged - Finding as to - Sustainability - The consistent record of repeated offences of similar nature committed by petitioners in the same area within a span of two months can reasonably cause alarm or feeling of insecurity among a section of general public living in that or surrounding area - Therefore it has to be necessarily deemed that public order was likely to adversely affected due to the alleged activities of the petitioners - The detention authority has rightly formed the opinion that activities of petitioner was likely to adversely affect public order and Court cannot substitute its own opinion for that of detaining authority - The contention that petitioners were not supplied copy of bail applications and orders made thereon in a case relied upon by detaining authority has also no force - Court found that documents were neither material nor the basis of the impugned order since in all those cases maintained in the order, petitioner were released on bail - The arguments that antecedents and character of two witnesses whose name not disclosed and relied upon by detaining authority were not verified by him cannot be sustained because no where it is provided to held an enquiry by detaining authority in that respect - Instead it calls for careful examination of the apprehension of the informant - The authority was therefore, rightly subjectively satisfied to pass the impugned order which calls for no interference.
Held :
If the activities of a "dangerous person" are likely to cause any harm, danger or alarm or feeling of insecurity among general public or any section thereof, it has to be deemed to be likely to adversely affect public order. In the facts of the present case, the consistent record of repeated offences of similar nature committed in the same area within the span of two months can reasonably cause alarm or feeling of insecurity among a section of general public living in that or surrounding area. Therefore, it has to be necessarily deemed that public order was likely to be adversely affected due to the alleged activities of the petitioners. It is not the persons who are directly and already affected by the alleged activities of the petitioners which is material, but it is the effect of the alleged activities on the even tempo of life its impact upon the society which is the important and relevant consideration for preventive detention which aims at preventing a general sense of insecurity. [Para 7]
As for the second submission based on non-supply of bail application and orders made thereon in connection with C.R. No. 311/06, though referred in the impugned order, it was seen that that was the first case mentioned in the grounds. The documents were neither material nor the basis of the impugned order since, in all, five cases were mentioned in the grounds in each of which the petitioners were released on bail. [Para 8]
It nowhere requires an inquiry into the antecedents and character of the witnesses whose names are not disclosed. Instead, it calls for careful examination of the apprehension of the informant in the context of the general background, character, antecedents, criminal tendency or propensity etc. of the detenu. If the apprehension of the informant is found to be reasonable and genuine, it is a matter of subjective satisfaction of the detaining authority to consider and decide whether it would be against public interest to disclose any information about the informant. [Para 9]
Law Laid Down :
When power not to disclose the names of witnesses is exercised by authority it was not incumbent upon authority to verify the antecedents and character of such witnesses.
Case Law Analysis :
Naresh Kumar Goyal vs. Union of India, 2005 (8) SCC 276 [Para 7];; Koli Bharatbhai Ukabhai Vegad vs. District Magistrate, 2001 (2) GLH 335 [Para 8].-Relied on
Conclusion :
Activities of petitioners were likely to adversely affect public order, therefore, order of detention passed by authority was validly made.
Cases Referred :
Tapan Kumar Mukherjee vs. State of West Bengal, AIR 1972 SC 840;; Gulab Mehra vs. State of U.P., AIR 1987 SC 2332;; Mrs. T. Devaki vs. Govemment of Tamil Naldu, AIR 1990 SC 1086;; Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police, 1995 (2) GLR 1268;; Darpan Kumar Sharma vs. State of Tamil Naldu, AIR 2003 SC 971;; Commissioner of Police vs. C. Antia, 2004 (7) SCC 467;; State of U.P. vs. Sanjai Pratap Gupta alias Pappu, 2004 (8) SCC 591;; Bhawarlal Ganeshmalji vs. State of Tamil Nadu, 1979 (1) SCC 465;; Union of India vs. Manoharlal Narang, 1987 (2) SCC 241;; Ayya alias Ayub vs. State of U.P., AIR 1989 SC 364;; M. Ahmedkuty vs. Union of India, 1990 (2) SCC 1;; Abdul Sathar Ibrahim Manik vs. Union of India, AIR 1991 SCC 2261;; Koli Sureshbhai Balabhai Parmar vs. District Magistrate, Bhavnagar, 2000 (2) GLH 540;; K.S. Nagamuthu vs. State of Tamil Nadu, 2006 (4) SCC 792;; Bai Amina w/o. Ibrahim Abdul Rahim Alla vs. State of Gujarat, 1981 GLR 1186;; Kajalben G. Sindhi vs. Commissioner of Police, Ahmedabad, 2000 (1) GLH 320.
Decided in Favour of :
Respondent
Petition Dismissed
( 1 ) IN both these petitions, invoking Article 226 of the Constitution and seeking writs of habeas corpus or any other appropriate direction setting aside the orders dated 30. 12. 2006 of detention, not only the impugned orders issued under the provisions of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, "pasa") but the grounds of detention, all other relevant facts and grounds of petition are all stated to be identical and hence, they are heard together and disposed by this common judgment.
( 2 ) ACCORDING to the grounds of detention supplied to the detenu under Section 9 of PASA, they are "dangerous persons" having cruel nature and criminal mind. They are stated to be indulging in the activity of committing theft in Odhav area of Ahmedabad by breaking open locks and grills of closed premises during night and thereby instilling a sense of fear in the public. Five FIRs are stated to have been registered in Odhav Police Station alleging offences punishable under Sections 454, 457 and 388 or Sections 457 and 387 of the Indian Penal Code, 1860, pursuant to each one of which the petitioners are stated to have been arrested in October 2006 and released on bail in November or December, 2006. The numbers and dates of the cases registered against the petitioners are: (1) C. R. No. 311/06 dated 25. 7. 2006, (2) C. R. No. 329/06 dated 7. 8. 2006, (3) C. R. No. 335/06 dated 11. 8. 2006, (4) C. R. No. 391/06 dated 28. 9. 2006 and (5) C. R. No. 401/06 dated 29. 9. 2006. As stated in the grounds of detention, implements for breaking locks were recovered from the petitioners and stolen goods and the goods alleged to have been stolen in C. R. Nos. 335/06, 329/06 and 401/06 are also stated to have been recovered from the goldsmith to whom they were sold. The detenues are stated to be "dangerous persons" as defined in Section 2 (c) of PASA and two witnesses, whose names were not disclosed in public interest, are stated to have related incidents in which the petitioners were alleged to have threatened and assaulted them with knife on 1st and 2nd October 2006, and a scene was alleged to have been created in public place due to which the people gathered at the spot had to run away out of fear. Statements of witnesses are stated to have been verified by the Detaining Authority and their identity is stated to have not been disclosed in public interest after being satisfied
about the genuineness of their apprehensions. Thus, after being satisfied about the petitioners status of being "dangerous persons" and in view of the fact that the petitioners, who were released on bail in connection with all the cases registered against them, were likely to persist in their anti-social activities, it was found to be necessary to prevent them from acting in a manner prejudicial to maintenance of public order and, as a last resort, impugned orders are stated to have been made.
( 3 ) LEARNED Counsel Ms. Banna Dutta, appearing for the petitioners, challenged the impugned orders on three grounds, namely, that the alleged activities of the petitioners did not adversely affect public order, that though bail applications and orders made thereon in connection with C. R. No. 311/06 were referred and relied upon in the impugned orders, copies thereof were not supplied to the detenu which deprived them of the opportunity of making proper representation and even non-consideration of those orders vitiated subjective satisfaction of the Detaining Authority and that the Detaining Authority had not verified the antecedents and character of the witnesses whose names were not disclosed, which caused serious prejudice to the petitioners.
( 4 ) BY filing an affidavit-in-reply of the Detaining Authority, it is, inter alia, stated as under:
7. I say that, as mentioned hereinabove, after carefully scrutinizing, examining and considering the materials placed before me and on personally verifying the genuineness, correctness and ver
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