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PETITIONER: AHMEDHUSSAIN SHAIKHHUSSAIN (C) AHMED KALIO

       Vs.

RESPONDENT: COMMISSIONER OF POLICE, AHMEDABAD & ANR.

DATE OF JUDGMENT19/09/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1989 AIR 2274            1989 SCR  Supl. (1) 177  1989 SCC  (4) 751        JT 1989 (3)   689  1989 SCALE  (2)545  CITATOR INFO :  D          1992 SC 979  (10A)

ACT:     Gujarat Prevention of Anti-Social Activities Act,  1985: Sections 3 and 9--Detention Order--Satisfaction of detaining authority--Not  open to judicial review--Disclosure of  ade- quate     facts    to    enable    full     and     adequate representation--Necessity for.

HEADNOTE:      The petitioner was directed to be detained under section 3(2)  of  the Gujarat Prevention of  Anti-social  Activities Act,  1985. In the grounds of detention it was alleged  that the  petitioner  was conducting  anti-social  activities  of illegally  storing  indigenous  and foreign  liquor  in  his possession and selling it by himself and through his men and that he and his men beat innocent citizens thereby  creating an  atmosphere  of fear and terror and he  had  thus  become obstructionist in the maintenance of public order. Reference was made to a previous order of detention which had been set aside by the High Court, and to the fact that  notwithstand- ing  the  previous detention, the  petitioner  continued  to carry  on his criminal and anti-social activities  affecting maintenance  of public order. It was further stated  in  the grounds  that the detaining authority had considered  taking action against the petitioner u/s. 93 of the Prohibition Act for  good conduct, and under sections 56B and 57(c)  of  the Bombay  Police Act for his externment, but all  these  steps were  either  found not feasible or adequate.  It  was  then stated  that there was a possibility of the petitioner,  who was  in  jail,  being released on bail  and  continuing  his criminal  activities, and to prevent the same there  was  no other alternative except to pass the order of detention.     Allowing  the  writ petition and quashing the  order  of detention this Court,     HELD: (1) The satisfaction of the detaining authority is not  open  to judicial review but a citizen is  entitled  to protection  within the meaning of Article 22(5) of the  Con- stitution of the procedural guarantees envisaged by law, and the  Court  frowns upon any deviation or infraction  of  the procedural requirements. [184A-B]

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(2)  The  fact that the detenu was in jail at the  time  the order of 178 detention  was made and the possibility of his release  from jail being made a ground of detention is not approved of  by this Court. [184C]     Ramesh Yadav v. District Magistrate, Etah, [1985] 4  SCC 232;  Binod Singh v. District Magistrate, Dhanbad,  Bihar  & Ors., [1986] 4 SCC 416 and Smt. Shashi Aggarwal v. State  of U.P., A.I.R. 1988 SC 596, referred to.     (3)  The  detaining authority must disclose  in  a  case where the detenu is already in jail that there is cogent and relevant  material constituting fresh facts  to  necessitate making of an order of detention. [184F]     Abdul  Razak  Abdul  Wahib Sheikh v.  Shri  S.N.  Sinha, Commissioner  of Police, Ahmedabad & Anr.,, J.T. 1989  1  SC 478  and  Ramesh v. State of Gujarat, J.T. 1989  3  SC  279, referred to.     (4) There is a wide gap between law and order and public order.  The criminal offence may relate to the field of  law and  order  but such an offence would not  necessarily  give rise to a situation of public order. Depending upon peculiar situations, an act which may otherwise have been  overlooked as  innocuous  might constitute a problem of  public  order. Selling  of liquor by the petitioner would certainly  amount to  an offence under the Prohibition Act but  without  some- thing more would not give rise to a problem of public order. Similarly  commission  of any other  criminal  offence--even assault  or  threat Of assault--would not bring  the  matter within the ambit of public order. [185B-C]     (5)  Disclosure of adequate facts to enable a  full  and adequate representation to the Preventive Detention Board is one  of the positive guarantees within the scope of  Article 22(5)  of the Constitution. In the present case the  grounds of  detention  show that the allegations are  more  or  less vague  and  have the effect of making it difficult  for  the petitioner to make an adequate representation. [185D-E] A.K. Roy’s case, [1982] 1 SCC 272, referred to.     (6)  The  grounds  of detention show  how  helpless  the authorities  feel  in the matter  of  enforcing  prohibition within the State. [186B]     (7) It is perhaps necessary to indicate that the  provi- sions  of the Prohibition Act of 1949 or the  Bombay  Police Act  should be suitably amended to meet the requirements  of society.  Even if the provisions under those Acts  are  made stringent the person proceeded against has the benefit of  a trial or a regular hearing and pursuing an appeal 179 against  adverse orders, but in a case of preventive  deten- tion  trial  is avoided and liberty is  taken  away  without providing a right to defend himself. [185H; 186A]

JUDGMENT:     CRIMINAL    ORIGINAL    JURISDICTION:   Writ    Petition (Crl.)No. 54 of 1989. (Under Article 32 of the Constitution of India). T.U. Mehta and S.C. Patel for the Petitioner.     S.K.  Dholakia, M.N. Shroof and Ms. Hemantika  Wahi  for the Respondents. The Judgment of the Court was delivered by     RANGANATH   MISRA,   J. The  Commissioner   of   Police, Ahmedabad by his order dated 26.12.1988, directed the deten- tion  of  the petitioner under section 3(2) of  the  Gujarat

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Prevention  of AntiSocial Activities Act, 1985  (hereinafter referred  to  as ’the Act’). The petitioner was  taken  into custody under the order on that very day.               The material portion of the order of detention               stated:               "WHEREAS,   I.S.N.   Sinha,  Commissioner   of               Police,  Ahmedabad City, am empowered in  this               behalf  by  the Government of Gujarat  by  its               order,   Home  Department   No.   G.G./155/SB-               IV/PASA/1085/1191  dated 28.5.1985 under  sub-               section  (2) of section 3 of the Gujarat  Pre-               vention of Anti-Social Activities Act, 1985.                         AND  WHEREAS,  I am  satisfied  with               respect to person known as Shri  Ahmed-hussain               @  Kalio  Shaikhhussain  Shaikh  resident   of               Dariyapur,  Bukhari Mohallo,  Ahmedabad  City,               that with a view to preventing him from acting               in  any manner prejudicial to the  maintenance               of public order in the area of Ahmedabad City,               it  is  necessary to make an  order  directing               that  the said Shri Ahmedhussain @  Shaikhhus-               sain Shaikh be detained.                         NOW, THEREAFTER, in exercise of  the               powers conferred by sub-section (1) of section               3  of  the Gujarat Prevention  of  Anti-Social               Activities Act, 1985, I, S.N.               180               Sinha, Commissioner of Police, Ahmedabad  City               hereby direct that the said Shri  Ahmedhussain               @ Kalio Shaikhhussain Shaikh be detained."     The grounds communicated to the petitioner under section 9(1)  of the Act alleged that the petitioner was  conducting anti-social  activities of illegally storing indigenous  and foreign  liquor  in  his possession and was  selling  it  by himself  and  through his men in the area of  Dariyapur  and three  prosecutions had been launched against him under  the Bombay  Prohibition  Act of 1949. From  the  particulars  it appeared that one case was pending in court while the  other two were under investigation. The detaining authority there- after stated:               "Thus  on  careful  study  of  the  above-said               complaints and entire papers with the  propos-               al,  it  is found that you are  a  prohibition               ’bootlegger’  and are  conducting  anti-social               activities  of selling indigenous and  foreign               liquor illegally. You and your companions beat               the innocent citizens of the above-stated area               in public and create an atmosphere of fear and               terror  for  continuing  your  criminal  anti-               social  activities.  Moreover,  you  and  your               companions are creating atmosphere of fear  by               beating  the innocent citizens, threaten  them               to  kill  while passing through that  area  by               showing  dangerous weapons suspecting them  to               be the informants of the police. The customers               of  your adda in drunken condition  play  mis-               chief,  and beat the persons in  open;  people               residing there have fear and terror is  spread               in the said area. Moreover, you beat those who               oppose your bringing the quantity of wine  and               you threaten to kill and you create an  atmos-               phere  of  fear and terror.  Because  of  such               activities,  the  citizens  residing  in   the               above-stated area have fear of damage to their               property  and the safety for themselves.  Thus

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             you  become an obstructionist in  the  mainte-               nance of public order.                         The citizens residing or doing their               trade  in the said area have stated the  facts               corroborating   your   above-stated   criminal               anti-social  activities as a result  of  which               you  become obstructionist in the  maintenance               of  public  order. Such  incidents  have  been               stated in detail. The copies of the statements               thereof are given to you herewith". Reference was made to a previous order of detention of  July 12, 1987, 181 which  was set aside by the High Court on 3.12.1987  and  to the  fact that notwithstanding the previous  detention,  the petitioner  continued  to carry on his  criminal  and  anti- social activities affecting maintenance of public order.               In the grounds it was further stated:               "I  had also considered to prevent your  anti-               social  activities of selling wine  by  taking               action  u/s  93 of the  Prohibition  Act.  But               according to the provision of section 93, only               surety  for  good conduct can be taken.  I  am               fully  satisfied  that even if  you  give  the               surety for good conduct, you will not obey the               same. Looking to your activities uptil now,  I               feel that you will not obey the same. So I  do               not  think  it possible to prevent  your  such               anti-social  activities immediately by  taking               action  against  you under section 93  of  the               Prohibition Act.                       I   had  considered  to  take   action               against you u/s 57(c) of the Bombay Police Act               for  your externment. But under the  provision               of  section 57(c), three convictions within  a               period  of three years under  the  Prohibition               Act are necessary. In your case, of the  cases               which  are  registered against you  under  the               Prohibition  Act, one is pending in the  Court               and two cases are pending for police  investi-               gation. In your case there is no such  convic-               tion;  so it is not possible under the law  to               take action against you u/s 57(c) for  extern-               ment.                        I  had also considered to  take  pro-               ceeding  against  you u/s 56B  of  the  Bombay               Police Act for externment: but if the proceed-               ings  u/s  56B of the Bombay  Police  Act  are               taken  against  you, first of all  show  cause               notice  is  required to be given  to  you  u/s               59(1)  of  the Bombay Police  Act.  Then  such               order can be passed only after giving you full               opportunity  to defend by examining  your  de-               fence witnesses. Even if such order is  passed               against you, you can go in appeal against  the               externment  u/s  60 of the said  Act  and  the               possibility of granting stay to you cannot  be               avoided.  So a long time is taken in the  pro-               ceedings of externment u/s 56B and during this               period  you  may  continue  your   anti-social               activities and there are all chances that  you               become  obstructionist in the  maintenance  of               public order; so it is not possible to prevent               your anti-social activities immedia-               182

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             tely  by  taking action u/s 56B and I  do  not               think  proper to take action against  you  u/s               56B.                        You    and   your    companions    of               Dariyapur--Kalupur   are   keeping   dangerous               weapons  and  making conspiracy  to  beat  the               innocent  persons and because of your  activi-               ties  an  atmosphere  of fear  and  terror  is               spread  in the said area and people have  fear               of  safety for themselves and damage to  their               property. Because of your such activities  you               have become obstructionist to the  maintenance               of  public  order  and because  of  your  such               activities the atmosphere of public order  has               been disturbed. Thus considering all the above               facts,  I  am fully satisfied that you  are  a               prohibition boot-legger and you are conducting               anti-social  activities of selling  indigenous               and  foreign  liquor and you are  creating  an               atmosphere  of  fear  and  terror  by  beating               innocent  persons in public and threaten  them               to  kill by keeping dangerous weapons  in  the               above-stated  area  and  you  are   conducting               activity  of  selling the wine  in  person  or               through  your persons. Action under the  ordi-               nary  law has been taken for  preventing  your               such  activities. At present you are  in  jail               under  the Prohibition Act  .......  There  is               every possibility that you will be bailed  out               by  giving  surety by the Court  because  this               offence is bailable. It is quite possible that               you  may  continue your  criminal  anti-social               activities   after   release  on   bail   from               court  .......  As it has become necessary  to               prevent your anti-social activities to prevent               the same as there is no other alternative  and               as the last alternate I pass the order to take               you in detention under the said Act."     A list of documents relied upon by the detaining author- ity was appended to the grounds and the said list is  Annex- ure-D to the petition.     The  detaining  authority  has filed  his  affidavit  in support  of the order of detention. In paragraph 7  of  such affidavit the deponent has stated:               "With  reference to paragraph 7 of  the  peti-               tion, I submit that the averments made therein               are absolutely wrong in view of the fact  that               the petitioner has not ’been wrongly  involved               by me under the P.A.S.A. Act. It is only on               183               perusal of the relevant record which has  been               supplied to the petitioner and after consider-               ing the prognosis about the futuristic activi-               ties  of  the petitioner, I  was  subjectively               satisfied  that it is necessary to detain  the               petitioner  preventively under the  provisions               of the P.A.S.A. Act with a view to  preventing               him  from  indulging in like  activities  and,               therefore,  the impugned order was  passed  by               me".               In paragraph 8(c)of the counter-affidavit  the               detaining authority has further stated:               "I further submit that so far as the petition-               er’s detention in the year 1987 is  concerned,               it is true that the Hon’ble Gujarat High Court

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             had  directed the authorities to  release  the               petitioner and the said fact has already  been               clearly mentioned in the grounds of detention.               I further submit that since the Hon’ble  Guja-               rat High Court had passed the order, the order               being judicial one, I have nothing to  comment               on  it.  However, I submit that  there  is  no               nexus  between the order of the  Hon’ble  High               Court  in that petition and the facts  of  the               present  case  and,  therefore,  the  judicial               pronouncement  by  the  Hon’ble  Gujarat  High               Court  has  no application whatsoever  to  the               facts  of the present case. Since the  present               order is passed on totally fresh grounds which               are  sufficient  enough  to  give   subjective               satisfaction to me for the purpose of  passing               the  order  of detention ........   I  further               submit  that the fact that the petitioner  was               earlier  detained and the fact that the  order               of detention was quashed by the Hon’ble  Guja-               rat  High Court was considered by me and  that               has  also  been mentioned in  the  grounds  of               detention  ........  "     The  Bombay Prohibition Act of 1949 is in force  in  the State of Gujarat and prohibition is in force in this State.     We  have extracted a substantial portion of the  grounds of  detention  communicated to the petitioner  to  show  how helpless  the  authorities feel in the matter  of  enforcing prohibition within the State. Obviously neither the Prohibi- tion Act nor the other statutes referred to by the detaining authority could be called in aid to meet the requirements of the situation. On his own showing, afraid of the  petitioner being released on bail and resorting to anti-social  activi- ties, and with a view to ensuring his detention in jail  the impugned order has been made. 184     The satisfaction of the detaining authority is not  open to  judicial review but as has been pointed out  by  several Constitution  Bench  decisions of this Court  a  citizen  is entitled  to protection within the meaning of Article  22(5) of  the Constitution of the procedural guarantees  envisaged by law. The Court frowns upon any deviation or infraction of the procedural requirements. That in fact is the only  guar- antee  to the citizen against the State’s action of  preven- tive detention.     The  fact  that the detenu was in jail at the  time  the order  of  detention  was made and the  possibility  of  his release  from jail being made a ground of detention was  not approved  of  by  this Court in Rarnesh  Yadav  v.  District Magistrate, Etah & Ors., [1985] 4 SCC 232 and Binod Singh v. District  Magistrate,  Dhanbad, Bihar & Ors., [1986]  4  SCC 416. In Smt. Shashi Aggarwal v. State of U.P. & Ors., A.I.R. 1988 SC 596, this Court pointed out:               "Every  citizen in this country has the  right               to  have recourse to law. He has the right  to               move  the court for bail when he  is  arrested               under  the  ordinary law of the land.  If  the               State thinks that he does not deserve bail the               State  could  oppose  the grant  of  bail.  He               cannot,  however, be interdicted  from  moving               the  court  for bail by clamping an  order  of               detention. The possibility of the court grant-               ing  bail  may not be sufficient. Nor  a  bald               statement  that  the person would  repeat  his               criminal  activities  would be  enough.  There

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             must  also be credible information  or  cogent               reasons apparent on the record that the  dete-               nu,  if enlarged on bail, would  act  prejudi-               cially to the interest of public order."     We  may now refer to two decisions of this  Court  under the  present  Act. In the case of Abdul Razak  Abdul.  Wahib Sheikh v. Shri S.N. Sinha, ’Commissioner of Police,  Ahmeda- bad  &  Anr., J.T. 1989 1 SC 478 it has been held  that  the detaining authority must disclose in a case where the detenu is already in jail that there is cogent and relevant materi- al  constituting  fresh facts to necessitate  making  of  an order of detention. In that case, as here, the detenu was in jail  in  connection with a criminal case and the  order  of detention  was  served  on him in jail.  The  detenu’s  mere complicity in earlier incidents was not considered  adequate and  the detention under the Act was set aside. In the  case of Ramesh v. State of Gujarat & Ors., J.T. 1989 3 SC 279, an order  of detention under the Act was under  challenge.  The Court found that referring to incident which constituted the subject-matter of an earlier 185 order of detention vitiated the impugned order.     Apart  from  these, in the instant  case,  the  material disclosed  is  quite  vague with reference  to  the  persons affected  or victimised as also the time and place  of  such victimisation. This Court has on several occasions indicated that  there is a wide gap between law and order  and  public order.  The criminal offence may relate to the filed of  law and  order  but such an offence would not  necessarily  give rise to a situation Of public order. Depending upon peculiar situations  an act which may otherwise have been  overlooked as  innocuous  might constitute a problem of  public  order. Selling  of liquor by the petitioner would certainly  amount to  an offence under the Prohibition Act but  without  some- thing  more would not give rise to problem of public  order. Similarly  commission  of any other  criminal  offence--even assault  or  threat of assaUlt-would not  bring  the  matter within the ambit of public order.     Disclosure  of adequate facts to enable a full and  ade- quate  representation to the Preventive Detention  Board  is one  of the positive guarantees within the scope of  Article 22(5) of the Constitution. In A.K. Roy’s case, [1982] 1  SCC 272 a Constitution Bench of this Court indicated that  full- est  disclosure  of material should be made  to  enable  the representation  to  be effective. In the  present  case  the grounds  which we have extracted show that  the  allegations are  more  or less vague and have the effect  of  making  it difficult for the petitioner to make an adequate representa- tion.     Four witnesses had deposed against the petitioner. Their statements were supplied to the petitioner without  disclos- ing  their names. It is the stand of the respondent that  if the  names  were disclosed the witnesses were likely  to  be bodily  injured  or even eliminated. There  may  be  certain situations  where the disclosure has to be with-held but  in view  of the infirmities already indicated it is not  neces- sary  for us to examine whether in the facts of the  present case such withholding would not by itself vitiate the  order of detention.     We  are  satisfied  that the impugned  order  cannot  be sustained.  Accordingly, we quash the order and direct  that the petitioner be set at liberty forthwith.     It is perhaps necessary to indicate that the  provisions of  the  Prohibition Act of 1949 or the  Bombay  Police  Act should  be  suitably  amended to meet  the  requirements  of

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society.  Even if the provisions under those Acts  are  made stringent the person proceeded against has 186 the benefit of a trial or a regular hearing and pursuing  an appeal  against adverse orders, but in a case of  preventive detention trial is avoided and liberty of a citizen is taken away  without  providing  a right  to  defend  himself.  The grounds  provided  by the detaining authority  have  clearly exhibited a sense of helplessness to meet the requirement of the  situation; that, however, is a matter for the  Legisla- ture and the Administration to consider but the Court has to zealously  guard enchroachments on the liberty of the  citi- zen. R.S.S.                                              Petition allowed. 187