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PETITIONER: JAHANGIRKHAN FAZALKHAN PATHAN

       Vs.

RESPONDENT: POLICE COMMISSIONER, AHMEDABAD & ANOTHER

DATE OF JUDGMENT27/07/1989

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PANDIAN, S.R. (J)

CITATION:  1989 AIR 1812            1989 SCR  (3) 583  1989 SCC  (3) 590        JT 1989 (3)   183  1989 SCALE  (2)72

ACT:     Gujarat Prevention of Anti-Social Activities Act,  1985: Section 3(1)--Detention--Order cannot be made after  consid- ering previous grounds of detention quashed by Court. Vague averments made in grounds of detention----Bad in law.

HEADNOTE:     The  petitioner was detained on  October 12,  1988  under Section 1) of the Gujarat Prevention of Anti-Social  Activi- ties  Act,  1985.  The grounds of  detention  and  documents mentioned  therein were served on him on the date of  deten- tion.     Earlier,  the petitioner was detained in 1985 under  the National Security Act, 1980 and was released. Again in  1986 he was detained under the Gujarat Prevention of  Anti-Social Activities  Act, 1985. On a writ petition, the Gujarat  High Court  quashed the detention order and released  him.  These two  detention orders were also taken into consideration  by the Detaining Authority in arriving at his subjective satis- faction as regards detention of the petitioner in 1988.     In  the present writ petition, the petitioner has  chal- lenged the detention order passed on 12.10.88 on the grounds that  the order was vitiated since the  Detaining  Authority relied upon earlier detentions in arriving at his subjective satisfaction,  non-disclosure  of  names  and  addresses  of witnesses whose statements were mentioned in the grounds  of detention  and the vagueness of the statements made  in  the grounds of detention.     On  behalf  of  the Respondents it  was  contended  that though  the earlier two detention orders were  mentioned  in the grounds of detention they were not considered by him  in forming  his subjective satisfaction for clamping the  order of detention. Allowing the Writ Petition. HELD:  1. It is now well settled that while considering  the scope of 584 Section  15  of the Act the modification and  revocation  of detention order by the State Government shall not bar making of another detention order on fresh facts when the period of detention  has  come to an end either by  revocation  or  by

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expiry of the period of detention. But an order of detention cannot  he  made after considering the previous  grounds  of detention  when the same had been quashed by the court,  and if such previous grounds of detention are taken into consid- eration  while  forming the subjective satisfaction  by  the detaining  authority in making a detention order, the  order of  detention will he vitiated. It is of no  consequence  if the  further  fresh facts disclosed in the  grounds  of  the impugned  detention  order have  been  considered.  [588F-G, 589A.B] Abdul Latif Abdul Waheb Sheikh v. B.K. Jha and Anr.,  [1987] 2 SCC 22 and Chhagan Bhagwan Kahar v. Shri N.L. Kalna &  Ors., JT 1989 1 SC 572, relied on. 2. In the instant case, admittedly in the grounds of  deten- tion  specific  reference has been made to the  earlier  two orders of detention made in 1985 and 1986 against the  peti- tioner. The contention that though the earlier two detention orders  have been mentioned in the grounds of detention  and the  copy  of the orders passed in  the  previous  detention cases  as well as the grounds of detention were supplied  to the  detenu,  yet these were not at all  considered  by  the detaining  authority in forming his subjective  satisfaction for clamping the order of detention, cannot he sustained  in view  of  the statements made in the grounds  of  detention. [589C-E]     3.  The  other grounds regarding the  vagueness  of  the averments made in the grounds about the petitioner indulging in  criminal activities apart from the five  criminal  cases lodged  under  the  Prohibition Act  and  mentioned  in  the grounds of detention do not satisfy the requirements  envis- aged in s. 3(1) of the Act inasmuch as the said five specif- ic criminal cases have no connection with the maintenance of public  order.  The  aforesaid criminal  activity  does  not appear  to  have  disturbed the even tempo of  life  of  the people  of  the particular locality.  These  statements  are vague  and without any particulars and such vague  averments made  in  the grounds of detention are bad inasmuch  as  the detenu  could not make an effective  representation  against the impugned order of detention. As such the detention order is illegal and bad. [589F-H]     Abdul Razak Nanhekhan Pathan v. The Police Commissioner, Ahmedabad & Anr., [1989] 3 S.C.R. 569, referred to. 585

JUDGMENT:     ORIGINAL   JURISDICTION: Writ  Petition  (Criminal)  No. 485 of 1988. (Under Article 32 of the Constitution of India). T.U. Mehta and S.C. Patel for the Petitioner. G.A. Shah, Mrs. H. Wahi and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by     B.C. RAY, J. The petitioner has questioned in this  writ petition the legality and validity of the impugned order  of detention  made on October 12, 1988 by the respondent No.  1 under  sub.  s.  1 of sec. 3 of the  Gujarat  Prevention  of Anti-Social Activities Act, 1985 with a view to prevent  him from acting in any manner prejudicial to the maintenance  of public  order in the area of Ahmedabad city. The  petitioner was  detained  by the respondents and was  served  with  the grounds  of  detention  alongwith  the  documents  mentioned therein  on the very day of detention that is,  October  12, 1988. The grounds of detention were in Gujarati.

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   The  petitioner in the writ petition has stated that  he was  previously  detained under the National  Security  Act, 1980  S.R. No./PCB/ DTN/PASA/37/85 on May 23, 1985  and  was released on June 28, 1985. The petitioner had been  detained under the Gujarat Prevention of Anti-Social Activities  Act, 1985  hereinafter referred to in short, as ’PASA  Act’.  The said order was challenged by writ petition before the  Guja- rat High Court which quashed the same and the petitioner was released from detention. The main thrust of challenge to the impugned order of detention is that the detaining  authority in  addition to new facts has taken into  consideration  the earlier  two  detention  orders as well as  the  grounds  of detention referred to therein presumably for the purpose  of arriving at his subjective satisfaction that inspire of  the earlier detention order which was of course, quashed and set aside the detenu has been persistently continuing his  anti- social  activities  and as such the order of  detention  was clamped. This has vitiated the impugned order of  detention. Other  challenges  such as non-disclosure of names  and  ad- dresses  of four witnesses whose statements have  been  men- tioned  with the grounds of detention and have  been  served alongwith the grounds as well as the vagueness of the state- ments made in the grounds about the alleged criminal activi- ties of the detenu has rendered the order illegal and bad as the petitioner was prevented from making an effective repre- sentation against the same. 586 The relevant portion of the grounds are extracted hereunder:               "You are indulged into anti-social  activities               by selling stocking and keeping in  possession               of  yourself or through other person the  Eng-               lish and Deshi liquor of Dariapur area in this               connection the offences under Bombay  Prohibi-               tion  Act.  1949 are registered  against  you,               wherein  you  were arrested,  the  details  of               which is as under: S.No. Police  Office   Section        Stock        Disposal       Station Regis-                  Seized               ter No.    Dariapur  106/88    Prohibition     7575 ml.       under                        Act, ss. 66(3), English      investi-                        65(A), (E), 68, 5 Lt. Deshi   gation                        81, 85(1)(3)    Liquor.                                        Rs. 1971.    Dariapur  120/88    Prohibition   8640 mi.   under                        Act, secs.    English    investi-                        66(3), 65(A), liquor.    gation.                        (E), 68, 81,                        85(1)(3).    Rs. 940.          137/88    Prohibition  3 105 mi.     "                    Act, secs.   English                    66B, 65(E),  liquor.                    81,          Rs. 940.    "       145/88    "         166 bottles.  "                                English                                liquor.                                Rs. 1300.    "       146/88    Prohibition   82 Lt.       "                      Act, s. 66B,  English                      65E.          liquor.                                    Rs.800.               Accordingly,  upon  careful  perusal  of   the               complaint and papers enclosed with the propos-               al  it  appears  that you  are  a  Prohibition               Bootlegger,  and  doing  illegal  activity  of

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             selling English and Deshi liquor. You and your               companions  are  beating  and  showing  deadly               weapons like Rampuri knife to               587               the innocent persons passing through the  said               locality on the promise of being ’Batmidar’ of               police.  And  you are beating the  person  who               oppose  your activity of liquor, you are  com-               pelling to bring stock of liquor to the  Motor               Vehicles like Auto Rickshaw and upon denial to               do so, you threat to kill him by Rampuri knife               your customers who are drunken are teasing  to               the  women passing from there, and if any  one               oppose  or request not to do so, your  threats               showing Rampuri knife to kill to the  innocent               persons  are and an atmosphere of  danger  and               violence  is spread over because of your  such               offensive activities and as you are doing acts               which  are obstructive in  maintaining  public               administration.  You are an obstruct in  main-               taining public administration.                     You  are  an  obstruct  in   maintaining               public administration in view of the fact  and               result of your above stated anti-social activ-               ities,  and  fact of such instances  are  also               stated by the peace loving people doing  busi-               ness in the above area, copies of their state-               ments are given to you herewith.                     As  your  offensive activities  are  ob-               structive  in public administration  you  were               detained under NASA 1980 by this office  order               No.  PCB/DTN/NSA/37/85 date 23.5.85  and  were               released from detention on 28.6.85.                     And  your offensive activities  are  ob-               structive to the maintenance to public  admin-               istration  that you were detained  under  PASA               Act,   1985   by   this   office   order   No.               PCB/DTN/PASA/36/86  dt. 26.9.86, as  you  have               filed writ petition in the Honourable  Gujarat               High  Court against this order the  Honourable               High  Court has on 25.6.87 passed an order  to               release you from detention.                     Accordingly,  looking  to  the   overall               fact,  I am satisfied that you are  prohibited               bootlegger  and known a headstrong  and  angry               person, and an atmosphere of fear and violence               is spread over in residents of the said local-               ity because of your above anti-social  activi-               ties,  such activities cannot be refrained  by               taking steps under the common law." The  affidavit of reply affirmed by Mr. S.N. Sinha,  Commis- sioner 588 of  Police,  Ahmedabad city has been filed  on  December  7, 1988.  In paragraph 4, it has been stated that in  fact  the petitioner belongs to the gang of Abdul Latif and has not at all  been falsely prosecuted in any case, it has  also  been submitted that the petitioner was not good and was  involved in  activities which affect the society adversely. In  para- graph  9 of the said affidavit it has been denied  that  the grounds  are  not relevant for the purpose and  the  present detention  order has been passed totally on a different  and fresh grounds. It has also been submitted therein that it is absolutely  wrong to say that the earlier two orders  passed against  the petitioner were illegal in any manner.  Out  of

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the two detention orders, order of 1985 was passed under the National Security Act in view of the fact of public riots in the  Ahmedabad  city  and order of 1986 was  passed  on  the ground  of  the petitioner .being bootlegger  and  dangerous person  on  account of pendency of certain  prosecution  and both of which were passed by his predecessor and  therefore, the said orders have nothing to do with the present  orders. It has been further submitted that it is absolutely wrong to say  that  the sponsoring authority has  not  submitted  the earlier order of release of the petitioner by the Board  and the  Gujarat  High Court. The grounds of detention  make  it abundantly  clear that this fact was clearly considered  and thereafter  the detention order has been passed  and  there- fore,  there  is  no substance in the  contention  that  the decision  of  detention  would have been  different  if  the earlier orders of release would have been placed before him.     The  most important question that posed itself for  con- sideration  in this case is whether the detaining  authority while  considering the fresh facts disclosed in the  grounds of  detention has taken into consideration the  earlier  two detention  orders--one of 1985 under the  National  Security Act and the other of 1986 under the PASA Act in forming  his subjective  satisfaction  that  the detenu  inspite  of  the passing  of the earlier two detention orders has  been  per- sistingly  indulging  in his anti-social activities  and  as such  in preventing such criminal activities which  posed  a threat to the maintenance of public order the impugned order of detention has been made by him. It is now well settled by the decision of this court while considering the scope of s. 15  of  PASA  Act that the modification  and  revocation  of detention order by the State Government shall not bar making of another detention order on fresh facts when the period of detention  has  come to an end either by  revocation  or  by expiry of the period of detention.     Reference may be made in this connection to the decision of  this court in Abdul Latif Abdul Waheb Sheikh v.B.K.  Jha and Anr., [1987] 589 2 SCC 22 and in Chhagan Bhagwan Kahar v.  Shri N.L. Kalna  & Ors., JT 1989 1 SC 572 it is therefore, clear that an  order of  detention cannot be made after considering the  previous grounds  of detention when the same had been quashed by  the court,  and if such previous grounds of detention are  taken into consideration while forming the subjective satisfaction by  the detaining authority in making a detention order  the order of detention will be vitiated. It is of no consequence if  the further fresh facts disclosed in the grounds of  the impugned detention order have been considered.     In the present case, admittedly in the grounds of deten- tion  specific  reference has been made to the  earlier  two orders of detention made in 1985 and 1986 against the  peti- tioner. It is also evident that in the schedule of documents annexed  to the grounds of detention not only the copies  of the order of detention but also of the grounds of  detention in the earlier detention cases have been given to the  peti- tioner.  It  also appears from the statements  made  in  the grounds of detention that the detaining authority took  into consideration  the previous grounds of detention as well  as the orders made therein even though the same were  nullified by the High Court as well as by the Advisory Body,  presuma- bly,  for the purpose of showing that the detenu inspire  of those  earlier orders of detention was continuing his  boot- legging  activities.  It has been tried to be  contended  on behalf  of the detaining authority that though  the  earlier two  detention orders have been mentioned in the grounds  of

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detention and the copy of the orders passed in the  previous detention  cases  as well as the grounds of  detention  were supplied to the detenu yet these were not at all  considered by  him in forming subjective satisfaction for clamping  the order  of detention. This submission cannot be sustained  in view of the statements made in the grounds of detention.     The  other grounds regarding the vagueness of the  aver- ments made in the grounds about the petitioner indulging  in criminal  activities  apart  from the  five  criminal  cases lodged under the Prohibition Act and mentioned in the ground of detention do not satisfy the requirements envisaged in s. 3(1)  of the PASA Act in as much as the said  five  specific criminal  cases have no connection with the  maintenance  of public  order.  The  aforesaid criminal  activity  does  not appear  to  have  disturbed the even tempo of  life  of  the people  of  Ahmedabad City or of  the  particular  locality. Further  more  the averments have been made in  the  grounds are;               "Accordingly,  upon  careful perusal  of  com-               plaint and               590                        papers enclosed with the proposal  it               appears that you are a prohibition bootlegger,               doing illegal activity of selling English  and               Deshi  liquor.  You  and  your  companion  are               bearing  and showing deadly weapons like  Ram-               puri knife to the               innocent  persons  passing  through  the  said               locality  on the          promise  of  beating               ’Batmider’  of  police. And  you  are  beating               innocent  persons who oppose your activity  of               liquor         etc." These statements are vague and without any particulars as to what  place or when and to whom the detenu  threatened  with Rampuff knife and whom he has alleged to have beaten.  These vague  averments made in the grounds of detention  hereinbe- fore  are  bad in as much as the detenu could  not  make  an effective  representation  against  the  impugned  order  of detention.  As such the detention order is illegal and  bad. It  is pertinent to refer to the decision of this  court  in the  case of Writ Petition (Crl.) No. 15/1989  (judgment  of which  has been pronounced today) on this score. It  is  no, necessary  to consider and decide other questions raised  in this writ petition.       For the reasons aforesaid, we allow the writ  petition and  set aside the impugned order of detention made  against the  petitioner. We direct the respondents to set  free  the petitioner forthwith. G.N.                                    Petition allowed. ?591