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2024 Supreme(Guj) 906
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, Samir J. Dave, JJ.
Ranabhai Bhikhabhai Manek Through Bharat Ramsang Manek - Appellant
Vs.
The State Of Gujarat & Ors. - Respondent
Special Civil Application No. 2953 of 2024
Decided On : 04-03-2024
Advocate Appeared:
For the Appellant : Mr. Kartiksinh H Champavat Adv.
For the Respondent: Mr. Yuvraj Brahmbhatt, AGP, Government Pleader
IMPORTANT POINT
The central legal point established in the judgment is that non-supply of essential documents and reliance on undisclosed evidence by the detaining authority can vitiate the subjective satisfaction required for detention under the Act.
Headnote:
Habeas Corpus - Challenge to Order of Detention - Gujarat Prevention of Anti Social Activities Act, 1985 - Section 3(2) - Summary
Fact of the Case:
The petitioner filed a petition challenging the order of detention passed by the District Magistrate under the Gujarat Prevention of Anti Social Activities Act, 1985 (the Act). The challenge was based on non-supply of the statement of secret witness and delay in passing the order of detention.
Finding of the Court:
The court found that the non-supply of the statement of secret witness and the delay in passing the order of detention were sufficient grounds to set aside the order of detention. The court also noted that the detaining authority's reliance on the statement of secret witnesses without providing the actual documents raised questions about the subjective satisfaction of the detaining authority.
Issues: The issues involved non-supply of the statement of secret witness, delay in passing the order of detention, and the detaining authority's reliance on the statement of secret witnesses without providing the actual documents.
Ratio Decidendi: The court held that the non-supply of the statement of secret witness and the detaining authority's reliance on the statement without providing the actual documents vitiated the subjective satisfaction of the detaining authority, leading to the quashing of the order of detention.
Final Decision: The petition was allowed, and the impugned order of detention was quashed and set aside, ordering the detenue to be set at liberty forthwith if not required in any other case.
JUDGMENT :
A.Y. Kogje, J.
1. This petition under Article 226 of the Constitution of India is filed for the following relief:
“(a) to allow this Application;
(b) to issue a writ of habeas corpus and/or any other writ, order or directions, quashing the order of detention bearing No.DM/DCH/PASA/13/2023 dated 09.08.2023 passed by the respondent no.2- District Magistrate, Devbhoomi Dhwarka and to set the petitioner at liberty;
(c) to dispense with the filing of affidavit as the petitioner is in jail;”
2. The challenge is to the order of detention dated 09.08.2023 passed by the respondent– detaining authority viz. the District Magistrate, Devbhoomi Dwarka, in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner – detenue as defined under section 2(c) of the Act.
3. Learned advocate for the petitioner has challenged the order of detention on the ground that though the detaining authority has extensively referred to the statement of secret witness, which was recorded and verifying by the detaining authority, yet the same are not supplied alongwith the grounds of detention, and this itself is a ground sufficient to set aside the order of detention.
4. Additionally, learned advocate for the petitioner has argued that there is delay of 21 days in passing the order of detention, if the date on which the petitioner was enlarged on regular bail is taken into consideration.
5. As against that, learned AGP has objected to grant of the petition by submitting that the petitioner has been arraigned earlier also as an accused in three offences, falling under Chapters 16 and 17 of the IPC and therefore, has rightly been treated as habitual offender and a ’Dangerous Person’.
6. In so far as the issue with regards to non-supply of statement of the secret witness is concerned, learned AGP makes a statement under instructions that grounds of detention do not contain the statement of secret witnesses. This factual verification has been given by the learned AGP upon communication dated 04.03.2024 from the concerned In-charge, District Magistrate, Devbhoomi Dwarka, which is placed on record and the same is taken on record.
7. Having herd learned advocates for the parties and having perused the documents on record, the petitioner has been detained as ‘dangerous person’ by the impugned order of detention dated 09.08.2023 passed by the District Magistrate, Devbhoomi Dwarka. The detention order at various stages has referred to the statement of secret witness recorded by the sponsoring authority and on which the reliance is placed by the detaining authority to bring the activities of the petitioner in the definition of ‘Dangerous Person’ as contemplated under section 2(C) of PASA.
Such reference is also made in Para No.1 and again in para No.6 of the detention order, where the detaining authority has referred to the statement of secret witnesses and the verification being carried out by the Deputy Superintendent of Police, Devbhoomi Dwarka, District Devbhoomi Dwarka and from such verification of statement, the detaining authority arrived at subjective satisfaction that the petitioner alongwith his co-accused persons was habitual in committing offences, and that the member of general public out of fear did not report any FIR or complainant against him.
It is pertinent to note that alongwith grounds of detention, the documents supplied consists of an index of the documents supplied by the sponsoring authority alongwith its pasa proposal No.1/2023, wherein at item No.29, reference is made to the statement of secret witnesses in sealed cover. From the record, it appears that the petitioner having placed all the documents containing accompanying the grounds of detention on record, the statement of secret witnesses either in the sealed cover or otherwise are not found alongwith documents. Therefore, the Court has categorically inquired from the learned AGP in this connec
