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Bachubhai Mansukhbhai Bhavsar Vs. Commissioner of Police Ahmedabad City and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1982CriLJ512; (1981)GLR1204
AppellantBachubhai Mansukhbhai Bhavsar
RespondentCommissioner of Police Ahmedabad City and ors.
Cases Referred(see Golam Hussain v. Police Commissioner
Excerpt:
.....where the detenu has been regularly tried and acquitted, it would still be necessary for the detaining authority to explain as to why and under what circumstances the detention order was passed against the detenu in connection with those very incidents in order to effectively meet a challenge based on the ground of non-application of mind or mala fides. this is so because extreme cases can be visualized where a court has held a criminal case to be false and still a detaining authority with that judicial pronouncement before him may claim to be satisfied (though unreasonably) about prospective prejudicial activities based on what a court has found to be baseless. police commissioner, calcutta 1974crilj938 .) the detaining authority might be well within its bounds, however, in..........it was not sufficient merely to supply copies of the first information reports regarding those cases. copies of the further material showing that the petitioner was prosecuted and convicted or acquitted in the respective cases, which must have been before the detaining authority, was also required to be communicated to the petitioner. it is true that the petitioner himself was involved in those cases and ordinarily those facts would be within his personal knowledge. however, in order to enable the petitioner to make an effective representation from jail while he is under actual detention, especially in the context vi the circumstance that what was sought to be relied upon against him were cases which resulted in his acquittal, it was essential to supply to the petitioner copies, at.....
Judgment:

P.D. Desai, J.

1. By an order made on July 5, 1981, the first (Commissioner of Police, Ahmedabad City), in exercise of the powers conferred by Sub-section (2) read with Sub-section (3) of Section 3 of the National Security Act, 1980, ordered the detention of the. petitioner, on being satisfied that it was necessary to do so with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city. The petitioner was duly detained pursuant to the said order. The grounds of detention of even date were thereafter served upon him together with the relevant documents. The petitioner instituted the present petition on Sept. 19, 1981. The petition reached preliminary hearing on Sept. 21, 1981 when Rule was ordered to issue returnable on Oct. 5, 1981, The petition reached final hearing today and it is being disposed of by this judgment.

2. The order of detention has been challenged on the following grounds ;

(1) Para l of the grounds supplied to the petitioner refers to and relies upon two cases of offences under the Prohibition Act in respect of which the petitioner was tried and acquitted; the detaining authority could not have validly taken into consideration these cases and he could not have been reasonably satisfied about the proclivity of the petitioner on the basis of incidents in respect of which a Court of law has found the petitioner not guilty.

(2) Copies of documents referred to and relied upon in para 1 of the grounds supplied to the petitioner have not been furnished to the petitioner; especially the copies of judgments whereunder the petitioner was either convicted or ac~ quitted have not been supplied; the result is that the petitioner was denied a reasonable opportunity of making a representation.

(3) Except the incident of June 13, 1981 referred to in the last part of para 1 and in para 2 of the grounds supplied to the petitioner, the other in' cidents are not relevant since they relate to 'law and order' and not to 'the maintenance of public order.'

(4) Since the incidents/events other than the incident of June 13, 1981 referred to and relied upon in para 1 of the grounds supplied to the petitioner are not relevant, the only basis for the detention of the petitioner is the sola incident of June 13, 1981; on the basis of such solitary incident, the detaining authority could not have reasonably reached the satisfaction that it arrived at with regard to the necessity of detaining the petitioner.

(5) In regard to the incident of June 13, 1981, a case has been registered against the petitioner at the Karanj Police Station for various offences punishable under the Indian Penal Coda and the Bombay Police Act; the petitioner can be prosecuted in respect of those offences and dealt with under the ordinary law of the land; the possibility and/or desirability of adopting such alternative course was not taken into consideration by the detaining authority; the order, therefore, suffers from the vice of non-application of mind and is mala fide.

3. In our opinion, the petitioner is entitled to succeed on grounds (1) and (2) set out above. It is, therefore, not necessary to pronounce upon the validity or otherwise of the remaining grounds.

4. In order to appreciate the challenge based upon grounds (1) and (2), it would be necessary to set out the material portion of the grounds supplied to the petitioner. The preambulary portion states that the reasons for the order of detention were set out in the succeeding paragraphs thereto. The three succeeding paragraphs, which are material, require to be fully extracted. When trans-, lated into English, those three para-: graphs read as under :

Offences have been registered against you at the Karanj Police Station, being Crime Register No. 403/78, Prohibition Act, Section 6G (b); Crime Register No. 441/78, Prohibition Act, Section 85 (1), (3); Crime Register No. 531/78, Prohibition Act, Sections 65 (e), 66 (b); Crime Register No. 58/79, Prohibition Act, Section 65 (e). In those cases you were convicted. In respect of Crime Register No. 110/78, IPC Section 324 you were charge-sheeted in a Court of law and there was a compromise. In respect of Crime Register No. 1208/79, Prohibition Act, Section 66 (b) and Crime Register No. 3/79, Prohibition Act, Section 66 (b), you were charge-sheeted in a Court of law but there was acquittal, In respect of Crime Register No. 176/81, I. P. C, Sections 307, 143, 147, 148, 149, 153(c), 332, 337, 338, 427 and 188, and Bombay Police Act, Section 135(1), investigation is under progress and you lvete arrested in connection with that case. You are thus known for commission of criminal acts.

On 13-6-1981 at about 21-45 hours you and your associates Sarvashri Mukesh Dalsukh alias Kalia Dada, Chhagan Premaji Marwadi, Pratap Agarji Mar-wadi, Chamnaji Jogaji Marwadi, Harkishan Bechardas alias Bakadada, Bharat Shantilal alias Budbia Dada, Rasik-lal Bhailal, Prabhat Shakara Rabari and about 200 other persons belonging to the Hindu community had formed an unlawful assembly near Maliwada Pole in the Shahpur locality. You had instigated (the members of the said unlawful assembly) to make an assault on the houses of the members of the Muslim community situate in the area. The Hindu members of the assembly got incited and they had thrown glass bottles, fire-balls (scorches) and stones on the houses of the members of the Muslim community situate in the locality. At that time, the passers-by in the locality had run helter-skelter because of the fearful and oppressive atmosphere in the locality. The normal pursuits of life were jeopardized. People closed the doors and windows of their houses. In that manner, the day-to-day life of the people was disturbed. In order to bring the situation under control, the police was compelled to resort to tear-gassing and firing and to impose curfew in the locality. The police and S. R. P. had to be extensively deployed. In connection with this incident, an offence of rioting has been registered at the Karanj Police Station at C. R. No. 176/81.

On the basis of the facts set out above, I am satisfied that it is necessary to detain you in order to prevent' you from indulging in such activities again and, therefore, the order of detention has been passed by me.

5. On a fair reading of the material parts of the grounds supplied to the petitioner, there is no manner of doubt that the order of detention is based on the various facts and circumstances referred to in para l and on the incident referred to in para 2 of the extracted portion. In other words, the petitioner's involvement in several cases, his prosecution in a large number of those cases and such prosecutions resulting either in his conviction, acquittal or compromise were amongst the facts which weighed with the detaining authority in passing the detention order and they were amongst the materials which the1 detaining authority took into consideration in arriving at the requisite satisfaction. An attempt was made before us on behalf of the detaining authority to characterise the facts and circumstancesi referred to in para 1 as the background1 material which was relevant only for the purpose of evaluating the image of the petitioner in the public mind and on that basis, to isolate or separate' them from 'the real ground of detention' which, according to the detaining' authority, was contained in the two succeeding paragraphs. On that basis, it: was urged on behalf of the detaining; authority that even if there was any vice in para, the order of detention' would not be affected. We are unable to agree. As pointed out earlier, paragraphs 1 and 2 of the extracted portion' are not separable from each other and, in any case, the contents of both the-paragraphs have weighed with the destining authority in arriving at the requisite satisfaction. Under the circumstances, the vice, if any, in anyone off the two paragraphs or both the paragraphs, as the case may be, would vitiate the detention order. Indeed, as held in Mohd. Yusuf v. State of J. & K., : [1980]1SCR258 , no disinction can be made between introductory facts, background facts, and grounds as such, so far as the material on which an order of detention is passed in concerned. All allegations of fact which have led to the passing of the order of detention are 'grounds of detention', if such allegations or any of them are shown to suffer from any vice such as irrelevance, vagueness, non-existence and non-application of mind, the detenu will be entitled to be released,

6. Against the aforesaid background, let us examine the twofold challenge levelled by the petitioner. Amongst the incidents/events taken into consideration by the detaining authority are two offences under the Prohibition Act in respect of which the petitioner was pro-secuted and acquitted. The question is whether the detaining authority could have relied upon those incidents/events without anything more. Very recently, we had an occasion to consider this question in a detention case. In Spl. Criminal Appln. No. 389 of 1981 decided on Oct. 1, 1981* by this Bench, the following observations are made in this context:

Even proceeding on the footing that the principle would be applicable even in the context of a situation where the detenu has been regularly tried and acquitted, it would still be necessary for the detaining authority to explain as to why and under what circumstances the detention order was passed against the detenu in connection with those very incidents in order to effectively meet a challenge based on the ground of non-application of mind or mala fides. This is so because extreme cases can be visualized where a Court has held a criminal case to be false and still a detaining authority with that judicial pronouncement before him may claim to be satisfied (though unreasonably) about prospective prejudicial activities based on what a court has found to be baseless. It would be an abuse of detention powers and virtual nullification of the judicial process to permit that to be done (see Golam Hussain v. Police Commissioner, Calcutta : 1974CriLJ938 .) The detaining authority might be well within its bounds, however, in relying upon those very incidents if it shows, for example, that it was not possible to obtain a conviction because the prosecuting agency was unable to get evidence or sufficient evidence on account of the fear of the detenu, or that the evidence connecting the detenu with the incidents was such as was not legally admissible in a regular criminal trial, or that the acquittal was on a technical ground, or that there was some such or similar reason for relying upon those very incidents in spite of the acquittal.

It is apparent, therefore, that the incidents in respect of which the detenu was regularly tried and acquitted could be legitimately taken into account by the detaining authority only if it shows the existence of one or more of the circumstances referred to in the above decision.

7. In the instant case, the challenge under consideration was raised by an amendment of the petition and in para 7-A the allegation, in substance, waa that with the judicial pronouncement before him the detaining authority could not have been reasonably satisfied about the prospective prejudicial activities based on what the Court had found to be baseless. According to the petitioner, the detention order was, therefore, mala fide and suffered from the vice of non-application of mind. In the first affldavit-in-reply date Oct. 3, 1981, filed by the detaining authority before para 7-A was introduced by way of amendment, all that is stated is that the fact that the petitioner was acquitted in cases launched against him would not by itself change his image in the mind of the public and that the 'criminal past'1 of the petitioner was relied upon only for the purpose of appreciating that the image of the petitioner in the public mind had basis for it and that it was not a figment of imagination. In the further affldavit-in-reply dated Oct. 12, 1981 filed by the detaining authority after the amendment was granted, the version is that he had considered only the first information reports of the cases in which the petitioner was acquitted, implying thereby that the judgments and orders delivered by the Criminal Courts in those cases were not taken into consideration. In fact, there is an unequivocal assertion that on the basis of the first information reports of the cases in which the petitioner was convicted and acquitted and statements of persons who spoke about the part played by the petitioner in the incident of June 13, 1981, the detaining authority concluded that 'the statements made in the FIRs which resulted in acquittal were reliable'. It is also asserted that judgments of the Criminal Courts in those cases were not required to be supplied to the petitioner as the order of detention was not based on them. It is thus apparent that although in the grounds of detention the fact of the petitioner having been prosecuted and acquitted in those cases is referred to and, therefore, relied upon, the detaining authority has now taken a somersault presumably because of the nature of the challenges levelled against the order of detention. We cannot, however, accept the said version which appears to be a clear afterthought since it conflicts with the averments contained in the grounds of detention. We, therefore, hold- that while passing the order of detention, the detaining authority had taken ihto consideration nbt only the first information reports in respect of the cases in question but also the final verdict given by the Court in the prosecutions launched pursuant to such first information reports. In other words, we are of the view that while passing the order of detention, the detaining authority was not only seized of the first information reports in respect of those cases but he was also possessed of the information that on the basis of such first information reports the petitioner was prosecuted and that such prosecutions resulted in his acquittal.

8. One more aspect which emerged from the returns filed by the detaining authority is that he did not have the copies of judgments delivered in cases in which the petitioner's acquittal was ordered. The only material before him in regard to those case? was the respective first information reports and even though he was aware, presumably from some other source, that the prosecutions launched on the 'oasis of those first information reports had resulted in favour of the petitioner on account of his acquittal, he relied upon the allegations made in those first information reports as he four.d them 'reliable'.

9. Against the aforesaid background, the question is whether the detention js legal and valid. Having regard to the view taken in the decision in Special Criminal Appln. No. 389 of 1981 before relying upon the cases in which the petitioner was acquitted, the detaining authority was required to consider whether any one or more of the circumstances alluded to in the said decision; were present in the instant case. We find, however, that far from ascertaining whether such circumstances or any of them existed in the instant case, the detaining authority admits that he has not even looked at the judgments which resulted in the acquittal and that he inter alia considered the first information reports in those cases and found the version given in those reports to be reliable and on that basis, he reached the requisite satifaction. This indeed was totally impermisivle because the possbility cannot to be ruled out that in those cases the court might have acquitted the petitioner having found that the cases were false and under those circumstance the deataining authority could not have been resonably satisfied about the prejudical activites based on allegations which the court has found to be baseless. This infirmity which in our opinion is fatal vitiates the order of detention.

10. The second challenge is really consequential to the, first challenge, We have held earlier that the fact that the petitioner was prosecuted and acquitted in certain cases was present to the mind of the detaining authority and that those incidents have still bsen relied upon to Judge the proclivity of the petitioner. The incidents which resulted in the petitioner's prosecution and conviction have also been relied upon. Undei the circumstances, all the relevant material in that behalf, which was before the detaining authority, was required to be supplied to the petitioner. It was not sufficient merely to supply copies of the first information reports regarding those cases. Copies of the further material showing that the petitioner was prosecuted and convicted or acquitted in the respective cases, which must have been before the detaining authority, was also required to be communicated to the petitioner. It is true that the petitioner himself was involved in those cases and ordinarily those facts Would be within his personal knowledge. However, in order to enable the petitioner to make an effective representation from jail while he is under actual detention, especially in the context vi the circumstance that what was sought to be relied upon against him were cases which resulted in his acquittal, it was essential to supply to the petitioner copies, at least, of the judgments in cases which resulted in his acquittal. We express no opinion in this case on the question whether or not copies of the judgments in cases where he was convicted were required to be supplied. However, we' are clearly of the view that at least copies of the judgments whereunder he was acquitted ought to have been supplied to the petitioner. Supply of copies of those judgments would enable him to make a representation on the point whether in spite of such acquittal the detaining authority was justified in relying upon the incidents which resulted in the prosecution and ultimate acquittal. Since copies of those judgments were not supplied, yet another infirmity is introduced in the order of detention.

11. It is true that in the instant case, the detaining authority himself did not have before him copies of the judgments when the detention order was made and on that ground alone, the order must fail for the reasons stated hereinabove. Still, however, having regard to the fact that the circumstance of prosecution and acquittal was referred to and relied upon in the grounds, may be on the basis of some other material such as an entry in his history sheet or the like, it was imperative to supply to the petitioner not only copies of such material but also copies of the judgments resulting in his acquittal. In absence of such material there was no effective opportunity of representation.

12. For the foregoing reasons, we are of the opinion that the order of detention passed against the petitioner is vitiated and that his detention is illegal. Under the circumstances, the petitioner is directed to be released forthwith, so far as the present case is concerned. Rule made absolute in terms aforesaid.


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