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2020 Supreme(Guj) 945
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
UMESH A. TRIVEDI, J.
Gani @ Airtel Usmanbhai Shaikh – Petitioner
Versus
State of Gujarat – Respondent
Special Civil Application No. 727 of 2020
Decided On : 05-06-2020
Advocate Appeared:
For the Petitioner: Mr. O.I. Pathan.
For the Respondent: Mr. Utkarsh Sharma.
Point of Law: . Unless and until disclosure of the details is against the public interest, it is required to be disclosed to the petitioner to make effective representation under Article 22(5) of the Constitution of India or else the detaining authority is expected to claim the privilege for withholding the same after genuinely verifying such statements as to its contents as also the fear shown by the witnesses to be genuine or not.
Headnote:
Constitution of India,1950 - Article 226 and 22(5) - Gujarat Prevention of Anti Social Activities Act, 1985 - Sub-Section (2) of 3 and 2(c) - Indian Penal Code,1860 - Section 507 - Arms Act, 1959 - Maintenance Of Public Order - Registration of solitary offence - Demand ransom to compensate - Lethal weapon Learned advocate for the petitioner-detenue, submitted that petitioner cannot be branded as dangerous person under Section 2(c) of Act solely based on solitary offence as defined under the Act - Registration of solitary offence and the record of that case alongwith newspaper cutting relied on by the detaining authority will not disclose that activities of the petitioner is prejudicial to the maintenance of public order - Registered offence relied on by detaining authority for passing an order of preventive detention, there is no other material before it to subjectively satisfy itself to pass an order of preventive detention against the petitioner - Authority are 10 cases registered under different provisions of Indian Penal Code in Vadodara City - detention was passed and executed upon him - It is further stated in it that despite that he has committed further offence as reflected from order, being C.R. No. of 2019 registered with Laxmipura Police Station under Section 507 of the Indian Penal Code –
Finding of the Court:
, Statements of the anonymous witnesses are not personally verified as to incidents narrated therein as also the fear of them in disclosure of their identity by detaining authority - As such, for non-disclosure of it detaining authority is expected to verify same before acting upon such statements recorded by sponsoring authority - Unless and until disclosure of same is against public interest, it is required to be disclosed to petitioner to make effective representation under Article 22(5) of Constitution of India or else the detaining authority is expected to claim privilege for withholding same after genuinely verifying such statements as to its contents as also the fear shown by witnesses to be genuine or not - Neither detaining authority has claimed such privilege under Section 9(2) of the Act nor disclosed names and identity of anonymous witnesses - Impugned order of detention passed by the detaining authority is vitiated and as such the impugned order of detention cannot be sustained –
Result: Petition succeeds is allowed
JUDGMENT :
UMESH A. TRIVEDI, J.
1. RULE. Shri Utkarsh Sharma, learned Assistant Government Pleader, waives service of notice of rule on behalf of respondent no. 1-State.
2. This petition under Article 226 of the Constitution of India is preferred by the petitioner to quash and set aside the preventive detention order dated 16.12.2019 passed by the Police Commissioner, Vadodara in exercise of powers under Sub-Section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as ‘the Act’) whereby the petitioner has been detained as dangerous person. The said order came to be executed upon the petitioner-detenue on 16.12.2019.
3. Shri O.I. Pathan, learned advocate for the petitioner-detenue, submitted that the petitioner cannot be branded as dangerous person under Section 2(c) of the Act solely based on solitary offence as defined under the Act. He has further submitted that the registration of solitary offence and the record of that case alongwith the newspaper cutting relied on by the detaining authority will not disclose that the activities of the petitioner is prejudicial to the maintenance of public order. Except the registered offence relied on by the detaining authority for passing an order of preventive detention, there is no other material before it to subjectively satisfy itself to pass an order of preventive detention against the petitioner.
3.1 He has further submitted that there are three statements of anonymous witnesses recorded by the sponsoring Authority-in-charge Police Sub-Inspector, Laxmipura Police Station, Vadodara dated 15.12.2019 finding place in the grounds of detention whose names, addresses and the occupation are not disclosed to the petitioner and thereby deprived the petitioner of making effective representation under Article 22(5) of the Constitution of India and therefore, the impugned order of detention is required to be quashed and set aside.
4. As against that, Shri Utkarsh Sharma, learned Assistant Government Pleader, submitted that as a matter of law, it cannot be held that the preventive detention order cannot be passed only on solitary offence. If registration of offence clearly discloses breach of public order or activities of the petitioner, which is prejudicial to the maintenance of public order, a preventive detention order can be passed by the authority against the petitioner. Therefore, he has requested to dismiss the petition.
5. Adverting to the facts of the case, it is stated by the authority that in the years 2014, 2015, 2017 and 2019 there are 10 cases registered under different provisions of Indian Penal Code in Vadodara City as also in areas like Sama, Fatehgunj, Raopura, Panigate, Karelibaug, Sayajiganj, Gotri, Savli and Vadodara Police Station. It is further stated in it that four times earlier in the years 2014, 2015, 2017 and 2019, an order of preventive detention was passed and executed upon him. It is further stated in it that despite that he has committed further offence as reflected from the order, being C.R. No. II 117 of 2019 registered with Laxmipura Police Station under Section 507 of the Indian Penal Code. The order of detention further discloses that the petitioner-detenue is a headstrong person and very fierce by nature. He used to contact innocent citizens over phone and demand ransom as he suspected that because of them he had to remain in detention and he used to demand ransom to compensate it. It is further disclosed that because of the activities of the petitioner, there is a fear in the mind of women in the city and a terror is created amongst them and thereby the petitioner has caused hindrance to the public order. Not only that, the order of detention further reflects that the petitioner is a headstrong person and not carrying on any honest pursuits in life. It is further stated that he keeps lethal weapon with him always and is acting as a road side ruffian in the area of Sayajiganj, Gorva, Gotri road in Vadodara. It
