Ramesh Vandha Modhwadiya thro'' Brother vs State of Gujarat and Others

Anant S. Dave, J.—RULE. Mr. Pranav Dave, learned Assistant Government Pleader, waives service of Rule for the respondents.

This petition under Article 226 read with Articles 14, 19 and 21 of the Constitution of India challenges the order of detention dated 28.04.2009 passed by the respondent No. 2 in exercise of the powers conferred under subsection (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1995 (hereinafter referred to as the "PASA" for short), detaining the detenu Shri Ramesh Vandha Modhwadiya and ordering to send him to sub jail, Rajpipla.

While exercising the above powers under subsection (2) of Section 3 of the PASA, the detaining authority has stated that the activity of the detenu is prejudicial to the public order and, therefore, it is imperative for the detaining authority to exercise such powers.

Initially, this matter was taken up for hearing by the learned Single Judge (Coram: M.D. Shah, J.) and notice was issued to the respondents making it returnable on 19.5.2009 and again when the matter was listed on 20.5.2009 , a request was made by the learned Assistant Government Pleader to adjourn the case and thus, it was listed on 25.5.2009 and affidavit-in-reply was not filed by the detaining authority. This Court, on 25.5.2009, with certain observations of preliminary nature, directed the authority to take remedial measure and further ordered to the District Collector, Porbandar to remain personally present and accordingly, the District Collector, Porbandar has remained present today.

It is to be noted that along with this Special Civil Application, Civil Application No. 5769 of 2009 is filed with a prayer to release the detenu forthwith pending the aforementioned writ petition even on temporary bail.

When the matter was called out today, in the Vacation Court, before me, affidavit-in-reply filed by the respondent No. 2 Shri M.B. Parmar, detaining authority and the District Collector, Porbandar was submitted by Shri Dave, learned Assistant Government Pleader appearing for the respondent State and also for the detaining authority and that was ordered to be taken on record. When the matter was called out, the learned advocate for the petitioner was not present in the Court and, therefore, the matter was adjourned to 16.6.2009. But, before the order could be signed, the learned advocate for the petitioner appeared before the Court and a copy of the affidavit-in-reply was given to the learned advocate for the petitioner.

The learned advocate for the petitioner, initially, submitted that considering the nature of the order of detention and the grounds relied on by the detaining authority, at least, civil application for temporary release of the detenu be heard and upon disinclination on the part of the Court of not granting temporary release of the detenu during the pendency of the petition, it was urged by the learned advocate for the petitioner that, at least, the main matter, i.e. Special Civil Application No. 4873 of 2009, be taken up for hearing. Even the learned Assistant Government Pleader has also expressed his willingness to proceed further with the matter and accordingly the matter is taken up for final hearing.

Learned Counsel Shri B.M. Mangukia, appearing for the petitioner, has raised many fold contentions about exercise of powers u/s 3(2) of the Act and also exercise of privilege u/s 9(2) of the Act. At the threshold, the learned Counsel has invited the attention of this Court to the definition of a ''dangerous person'' as prescribed in the Act, which reads as under:

2(c) "dangerous person" means a person who either by himself or as member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code (XLV of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959).

Accordingly, the learned Counsel for the petitioner vehemently submitted that definition u/s 2(c) of the Act defines ''dangerous person'' means a person who either by himself or as a member of leader of a gang, habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959 and in any of the aforementioned eventualities, only a person can be branded as a ''dangerous person'' and can be detained upon the subjective satisfaction arrived at by the detaining authority, if not vitiated on the ground as challenged in this petition.

Apropos the above, the learned Counsel for the petitioner has taken this Court to the order of detention and submitted that the order impugned reflects the following factual aspects, viz. registration of FIR being CR No. II-10 of 2008 dated 12.2.2008 with Bagvadar Police Station for the offences punishable u/s 506(2) and Section 114 of the Indian Penal Code, read with Section 135 of the Bombay Police Act and Section 25(1) B.A. of the Arms Act. It also mentions about the custody of the detenu in jail pursuant to the above offences as pre-trial prisoner. Subjective satisfaction of the detaining authority, by and large, is based upon the aforementioned pendency of the FIR and likelihood of detenu of committing similar kind of dangerous activities in case the detenu is enlarged on bail. It further records satisfaction of the detaining authority on the ground of the statements of some witnesses, namely three witnesses, about the dangerous activities of administering threats and threatening voters not to vote in the ensuing elections and another witness stating about threatening him upon denial to offer food and was beaten with a stick and if the said witness refuses to leave the village in which he resides, to set him ablaze and because of fear, he could not file complaint and witness No. 3 also narrates the incident about demanding money from the said witness and upon refusal, he was slapped and Rs. 500/- were snatched and in case, complaint is filed before police, his residential house is to be set on fire. The above statements were recorded by the concerned PSI, again verified by Dy.S.P., Porbandar (Rural) and then by the detaining authority before passing the order of detention and inter alia it is submitted that the verification is not genuine and lacks basic facts about mentioning of the date and time. It is also submitted that the order of detention mentioned in the FIR and the contents of the FIR, even if taken as they are, do not reveal any role of the detenu of committing alleged offences and, at the most, the allegations are that the detenu was found at the place of the alleged offences with stick and, therefore, even registration of offence under the Arms Act and reliance placed by the detaining authority of such incidence for invoking drastic power under the law of detention deserves to be quashed and set aside. It is further submitted that the detaining authority while exercising the power under the detention has to arrive at subjective satisfaction on the basis of the materials on record and even the statements of the witnesses, at the most, reveal the ordinary offences under the Indian Penal Code, which do not fall under Chapter XVI and Chapter XVII of the Indian Penal Code. Besides, the power of detention is not available to the detaining authority when ordinarily, there is a disturbance of law and order and unless it affects even tempo of public life or tranquility, it cannot be said that there is a disturbance of the public order and the said solitary registration of the FIR for which powers have been exercised by the detaining authority claiming privileges u/s 9(2) of not disclosing the name of witnesses for which no opportunity is given to the petitioner, either in the grounds of detention or otherwise, and therefore, right to make effective representation, as available to the detenu under Article 22 of the Constitution of India, the basic constitutional right available to the detenu, is violated and liberty of the detenu is jeopardized and taken away without following the procedure established under the law and, hence, the order of detention is violative of Article 21 of the Constitution of India. It is further submitted that the order of detention is passed malafidely and for extraneous considerations, not germane to the exercise of powers inasmuch as the authority was bent upon to detain the detenu because of his different political analogy and was not drawing line to the ruling party and, therefore, exercise of such powers in arbitrary manner, vitiates the order of detention being arbitrary, unreasonable and violative of Article 14 of the Constitution of India.

So far as the custody of the detenu is concerned, when the order of detention is passed on 28.4.2009, no bail was granted and, therefore, satisfaction of the detaining authority about filing an application for cancellation of bail u/s 437(5) of the Criminal Procedure Code or satisfaction with regard to availability of lesser drastic remedy under the Bombay Police Act is not correct inasmuch as when the petitioner was already in jail, recording of some statements of the witnesses, which remained unverified and relied on by the detaining authority, also vitiates the order of detention.

Shri Mangukiya, learned Counsel for the petitioner, submitted that since the affidavit-in-reply is given by the learned Assistant Government Pleader today, a request was made to keep the matter next day so that rejoinder can be filed and certain averments made by the detaining authority are found first time in the reply to justify the order of detention but they are not reflected in the order of detention, which require rejoinder from the petitioner. The learned Counsel for the petitioner submitted that the authority passing the order cannot justify such order by supplying reasons or grounds by filing affidavit which are not taken in the order impugned and such exercise of justifying the order challenged on various grounds by incorporating reasons in the affidavit is held illegal by the Apex Court in a decision delivered in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, Therefore, analogous to the above arguments, the learned Counsel for the petitioner further submitted that when the FIR was filed in the month of February 2008, there was no justification to pass the order of detention after a period of 14 months and during which period and even during the above period of 14 months, when the petitioner was in custody and the statements of three witnesses do not mention about the date and time of the alleged administration of threats by the petitioner, proximity of such statements and passing the order of detention have no relevance and this ground is taken into consideration, an event which took place 14 months prior to passing the order and is made basis, the order of detention is illegal and extraneous to exercise of powers of detention. When the detaining authority in the affidavit-in-reply has come out with a report submitted by the PSI at Annexure-R1 to the affidavit-in-reply, where the reference is made about absconding of the detenu, the link is missing which indicates non-application of mind on the part of the authority inasmuch as nexus is snapped and the cause is not available for passing the order of detention. Subjective satisfaction arrived at also stands vitiated and, therefore, the order of detention is illegal. It is further submitted that the solitary instance of filing FIR is the basis of the order of detention, and submitted that in similar cases, this Court has exercised the powers under Article 226 of the Constitution of India to set aside the order of detention and reliance is placed on various orders by the learned Counsel for the petitioner.

To fortify the submissions about non-application of mind on the part of the detaining authority about non-supply of the report at Annexure-R1 to the affidavit-in-reply, the learned Counsel for the petitioner has also invited the Index of the materials supplied to the detenu along with grounds and order of detention, which do not reflect any such report and non-supply of such report by the authority is fatal for exercise of powers u/s 3(2) of the Act and, therefore, the order impugned deserves to be quashed and set aside.

Thus, by and large, according to the learned Counsel for the petitioner, when the activities attributed to the petitioner as a dangerous person do not fall within the definition of Section 2(c) as a ''dangerous person'' and no material exists on record or produced by the detaining authority to show that the petitioner is habitual offender, the order of detention impugned deserves to be quashed and set aside.

In counter to the above submissions, the learned Assistant Government Pleader appearing for the respondents, by and large, relied on the affidavit-in-reply filed by the detaining authority and it was submitted that the order of detention was passed after careful scrutiny of the material available before the detaining authority and thereafter, subjective satisfaction to detain the detenu was arrived. It was further submitted on behalf of the detaining authority that when the detention order dated 28.04.2009 was passed, the detenu was not enlarged on bail qua the FIR, being CR No. II-10 of 2008 registered with Bagvadar Police Station and another offence under the Arms Act and the Bombay Police Act and, therefore, what is reflected in the order of detention about the custody of the detenu pursuant to the above FIR is correct. The satisfaction of the detaining authority about likelihood of detenu of committing similar offences or similar kind of activities in future, if enlarged on bail, cannot be said to have been vitiated. The detaining authority has claimed privileges u/s 9(2) of the Act, which legitimately empowers the detaining authority not to disclose the names and addresses of the witnesses, which will be prejudicial to public order and interest both. The learned Assistant Government Pleader submitted that in case, if the detenu is enlarged on bail, the procedure to avail the remedy of filing an application for cancellation of bail or otherwise, was quite cumbersome and lengthy and it was imminent to detain the detenu and to prevent disturbance of public tranquility and pubic order, powers have been exercised. The learned Assistant Government Pleader also submitted that in a given case, solitary instance may be a sufficient enough to exercise powers of detention, provided such instance or event or incident disturbs the public order. In the present case, if the FIR is perused, what is alleged against the petitioner is not only offence u/s 506(2) of the Indian Penal Code but also u/s 114 of the Indian Penal Code read with Section 25(1)BA of the Arms Act and definition of ''dangerous person'' includes offence under Chapter V of the Arms Act, 1959 and Section 506(2) read with Section 114 of the Indian Penal Code about administering threats to life and to set him ablaze will also fall under Chapter XVI of the Indian Penal Code since threat to body of a person is exercised and what is to be seen by the detaining authority is likelihood of dangerous activities of the detenu in future and his satisfaction in this regard. Therefore, according to the learned Assistant Government Pleader, when the petitioner was found at the place of offence where too many persons had assembled, any kind of threat will amount disturbance of public tranquility and, therefore, if the aforementioned FIR if perused with, the statements of three witnesses, as reproduced in the order of detention, according to the learned Assistant Government Pleader, it is not only with a view to administer threat with regard to vote, etc. but it reflects illegal activities of the petitioner of threatening witness to kill him and second witness states about inflicting two blows of stick and to leave the village, failing to which the above witness is to be set ablaze by the detenu. The statement of third witness, according to the learned Assistant Government Pleader, of snatching Rs. 500/- from the pocket and preventing him from lodging complaint upon administering a threat to set on fire his residential home. The above factors, according to the learned Assistant Government Pleader, will establish dangerous activity of the petitioner not of ordinary nature but disturbing the public tranquility and all three witnesses are independent and have no animosity and the same is verified.

The learned Assistant Government Pleader, therefore, submitted that exercise of powers by the detaining authority and the subjective satisfaction arrived at cannot be said to be a result of non-application of mind and this Court in exercise of powers under Article 226 of the Constitution of India will be loath in interfering with the order of detention.

In a rejoinder to the above submissions of the learned Assistant Government Pleader, Shri Mangukia, learned Counsel for the petitioner, reiterated all his submissions and urged that the powers have been exercised contrary to various decisions of this Court and the Apex Court and, therefore, the order deserves to be quashed and set aside.

Having heard the learned Counsel appearing for the parties, considering the record of the case, including the affidavit-in-reply filed by the detaining authority, it cannot be said that the powers of detention have been exercised by the authority in illegal manner or the order of detention is vitiated because of non-application of mind or arbitrary exercise contrary to Articles 14 and 21 of the Constitution of India.

The definition of ''dangerous person'' u/s 2(c) refers to commission of any of the offences punishable under Chapter XVI or XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act. The offence u/s 506(2) of the Indian Penal Code cannot be looked into in isolation when it is to be read with Section 114 of the Indian Penal Code. In this case, admittedly, FIR is filed against the detenu also for the offences punishable u/s 25(1)BA of the Arms Act. Section 25(1)BA is in Chapter V of the Arms Act, 1959 and, therefore, such offence attracts definition of Section 2(c) of the Act and reliance placed by the detaining authority on the above-mentioned offences cannot be said to be a non-application of mind, particularly when the competent Court of law is ceased with the merit of the case and when the order of detention is passed, the detenu was not enlarged on bail. Therefore, I am not inclined to accept the submissions of the learned Counsel for the petitioner on the above aspect that the activity of the detenu is not covered under the definition of Section 2(c) of the Act. The aforementioned aspect is to be considered with three independent witnesses and their statements made before the police authorities which came to be verified by Dy.S.P., Porbandar (Rural) and the detaining authority for which a privilege is claimed u/s 9(2) of the Act of not disclosing their names and addresses, if perused carefully and closely, it will reveal dangerous activities of the detenu of not only administering threat to vote or otherwise but to kill witness and in case, if any police complaint is lodged, to set him ablaze and in case of third witness, if he refuses to leave the village, to set his residential home on fire. The above threats by their nature are sufficient to brand the petitioner-detenu as a dangerous person and satisfaction arrived at by the authority cannot be said to be illegal, unjust and arbitrary on the ground that the subjective satisfaction is vitiated.

So far as filing of FIR lodged in the month of February 2008 and reliance placed by the detaining authority on the order of detention and the reference to the report at Annexure-R1, on the contrary, will reveal that the petitioner is not a law abiding citizen and even if he is enlarged on bail, there is all likelihood that such person will indulge in similar activities. The above report also reflects that even against the father of the petitioner, 19 offences, including offence u/s 302 of the Indian Penal Code, have been registered at Bagvadar Police Station. There is no reason to believe the version of three witnesses and the statements which they made before the police authorities, just before two days of passing the order, i.e. on 26.4.2009, which was perused and verified by the Deputy Superintendent of Police, Porbandar (Rural) and the detaining authority is empowered not to disclose the names and addresses of such witnesses u/s 9(2) of the Act so as to protect them from any untoward incident, since, such witnesses were already threatened by the detenu. Even verification of such statements, as recorded by the concerned PSI and the Dy.S.P., Porbandar (Rural), need not be under the Oaths Act. The correctness of such statements and satisfaction of the detaining authority is sufficient enough for arriving at subjective satisfaction.

At the place where the detenu threatened the complainant, large number of persons had gathered to offer prayers. One of the co-accused had threatened those persons to stop prayers, otherwise to face consequences. One of the accused had revolver and offence is registered under the Arms Act which falls under Chapter V. This will indicate that registration of FIR may be a solitary instance but such threat administered by the co-accused in presence of the petitioner, who was found there with stick, will certainly disturb the public tranquility and will create sense of fear and terror in the mind of the villagers who had assembled to offer prayers. Since the petitioner was a dangerous person, even continued his activities just two days before passing of the order of detention, as stated by three witnesses, satisfaction arrived at by the detaining authority about breach of the public order and likelihood of the petitioner of repeating or committing similar activities in future, cannot be ruled out and such satisfaction cannot be said to be, in any manner, arbitrary, unreasonable or contrary to the powers conferred by the detaining authority and, therefore, violative of Article 14 of the Constitution of India.

By filing the affidavit-in-reply, reference is made to the report at Annexure-R1, which is nothing but satisfaction of the authority to justify the delay and last recourse was made to the detention law in view of illegality committed by the petitioner and that is not the sole basis of passing the order. What is stated in para 7 of the affidavit-in-reply, on the contrary, reflects careful scrutiny and examination of material available before the detaining authority that the detenu is a dangerous person and he was required to be immediately prevented from continuing his illegal and antisocial activities prejudicial to the maintenance of the public order. The statements made by the witnesses and reliance placed therein, as stated earlier, will reveal the disturbance of the public order and at the time of election, the act of threatening the voter refraining him from exercising his right to vote is not an ordinary problem of breach of law and order but it will disturb the public order and such threat to a single person will create a kind of fear in the mind of other voters also and in such circumstances, if power of detention is exercised by the detaining authority, it cannot be said to be non-application of mind and no subjective satisfaction of the detaining authority is vitiated. It is trite that to brand a detenu as a ''dangerous person'', his illegal activities must show that he is ''habitual offender''. However, it does not mean that registration of series of FIRs or number of offences, but his illegal activities should have bearing on and prejudicial to public order and danger to public tranquility and if the facts of the present case are seen, registration of FIR, coupled with threats administered to three witnesses will certainly reveal that it is not a solitary case but the petitioner has indulged repeatedly into illegal activities.

The Apex Court, recently in a Criminal Appeal arising out of SLP (Cri.) No. 7644 of 2008, after considering the case of Kothari Filaments and Another Vs. Commissioner of Customs (Port) Kolkata and Others, , held as under:

As already discussed, even based on the incident the Detaining Authority is free to take appropriate action including detaining him under COFEPOSA Act. The Detaining Authority has referred to the violation in respect of importable goods covered under Bill of Entry No. 589144 dated 25.04.2007. In an appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activities, however, for that purpose antecedents and nature of the activities already carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was necessary to detain him. If there is no adequate material for arriving at such a conclusion based on solitary incident the Court is required and is bound to protect him in view of the personal liberty which is guaranteed under the Constitution of India. Further subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future.

Thus, according to the Apex Court, the Court will have to look into the facts of each case to see propensity and potentiality to continue into illegal activities by detenu in future and detention order is to be judged accordingly. Therefore, there is no straitjacket formula that if solitary instance by itself is vitiated, if it is made the basis of the order of detention or otherwise, having taken into consideration the above law, as laid down by the Apex Court, I do not see any reason to interfere with the powers exercised by the detaining authority u/s 3(2) of the Act.

Accordingly, the petition is dismissed. Rule is discharged with no order as to costs.

In view of the dismissal of Special Civil Application No. 4873 of 2009, Civil Application No. 5769 of 2009 does not survive and is accordingly disposed of. Notice is discharged with no order as to costs.