D.H. Shukla, J.
1. The petitioner, Aslambhai alias Tunde Hasubhai Shaikh, has challenged by this Special Criminal Application, his detention under an order (Annexure 'A' to the petition), dated 28-1-1986, passed by the Commissioner of Police, Ahmedabad City, under Sub-section (3) of Section 3 of the National Security Act, 1980 (hereinafter referred to as the 'Act'), on several counts, and has prayed for setting aside the said order of detention and set him at liberty forthwith.
2. The facts, shortly stated, are as under:
The petitioner, as stated above, was detained under the Act, vide order of the Police Commissioner dated 28-1-1986, and was supplied with the grounds of detention, even dated, in jail. A copy of the grounds of detention is to be found at Annexure 'B' to the petition. The State of Gujarat, respondent No. 2, in exercise of the powers conferred upon it by Sub-section (4) of Section 3 of the Act, by order dated 6-2-1986, approved the order of detention passed by the Commissioner of Police. A copy of the approval order is Annexure 'C'.
3. The grounds of detention allege that the petitioner had collected about 50 persons of the Muslim Community at about 7-45 p.m. on 5-1-1986, near Kadia Kui Circle and instigated them by shouting that there had erupted a communal riot in the Kalupur area, that many Muslim brothers had badly suffered in that riot, the shops were burnt or broken and that the members of the Muslim community ('Turn Lok') were sitting pretty. By sitting idle, no purpose would be served, 'therefore, all Muslims ('Turn Lok') should get ready by availing of 'Gupti', razor or a stick and whichever Hindu may happen to pass by be thrown down, take your revenge. Hindus ('Unkobhi') should also realise that Muslims have not put on bangles, do damage to the property of Hindus. I am with you'. The crowd of Muslims which was thus instigated damaged a motor car bearing No. GAA 6764 near Zakaria Masjid at about 8-00 p.m. on the same day and glass panel of the car was broken by the stick blows and Krishnakant Ratilal Patel, who was sitting inside the car and the driver Manohar Hanumantsinh were injured by Gupti blows and the said car was put to fire. At that time, the pedestrians started running helter-skelter. This way tempo of day-to-day life was throttled. The nearby shops were soon closed and an atmosphere of terror was created in that area, and as a result there erupted a communal riot between the Hindus and the Muslims in the Kalupur area and on Gandhi Road, on which account the day-to-day life of the people was disrupted. In order to take the situation under control, the Police was required to clamp a curfew. In connection with this incident, an offence was registered in the Crime Register at Kalupur Police Station at No. 5/86 under Section 147, 148, 149, 302, 307, 435, 436, 434, 323, 427 of the Indian Penal Code, and under Section 135(1) of the Bombay Police Act. In regard to the aforesaid incident, a complaint was lodged and a Panchnama was drawn and the statements of (1) Ashok Gordhandas Vasava, (2) Jivabhai Harkhabhai Vaghela, (3) Chandra Kishan Nayar, (4) Sahebasinh Majbutsin Agar, (5) Kanubhai Bhogilal Modi, (6) Mahmadrafik A. Shaikh, (7) Navnitlal Lalbhai Parikh, (8) Somaji H. Prajapati, (9) Krishnakant Ratilal Patel and (10) Manohar Hanumantrao Maratha were recorded and from the contents of these statements the Police Commissioner was satisfied that it was necessary to immediately take the petitioner under detention, since he was guilty of acts which were likely to be prejudicial to the maintenance of public order. It is also stated in the same detention order that in the opinion of the Police Commissioner, it was not possible to stop the petitioner in his aforesaid activities under the ordinary law of the land, because in that case he might get bail or he might go to the superior Court. It is also stated that this would consume delay and in the meantime the petitioner would prove himself an obstacle by continuing his activities in maintaining the public order. Therefore, in order to immediately prevent the petitioner from proceeding with his activities, it was found necessary to detain him as a last resort. It is also stated that under Section 8(1) of the Act, the reasons were intimated to him and the respective authorities before whom he could make a representation in his defence are also stated.
4. The petitioner has challenged this order on various counts as stated in the petition which we shall deal with in order of submissions made before us by Mr. H.L. Patel, the learned Advocate for the Petitioner.
5. On behalf of respondent No. 2, State of Gujarat the Under Secretary, has filed an affidavit-in-reply dated 1-3-1986. The Commissioner of Police, Mr. B.K. Jha has also filed an affidavit-in-reply dated 19-3-1986. A further affidavit on behalf of respondent No. 2, dated 16-4-1986, and on behalf of the Commissioner of Police, Mr. B.K. Jha, dated 24-4-1986, are filed. On behalf of respondent No. 3, the Union of India, an affidavit-in-reply of Mr. V.K. Sethi, Desk Officer, Ministry of Home Affairs, Government of India, is filed. Further affidavits of Mr. M.T. Parmar, Under Secretary dated 28-4-1986 and 29-4-1986, are filed. We shall refer to the several contentions raised in the aforesaid affidavits as and when we deal with the submissions made before us by Mr. H.L. Patel. At this stage, we may also mention that during the course of argument, Mr. H.L. Patel filed an amendment application dated 18-6-1986, to which the Under Secretary. Mr. M.T. Parmar, has filed an affidavit-in-reply dated 19-6-1986 and the Commissioner of Police B.K. Jha has filed an affidavit-in-reply dated 21-6-1986. They shall also be referred to as and when necessary in the course of our judgment.
6. Mr. H.L. Patel submitted that there was considerable delay in considering the representation filed by the petitioner and therefore, the order of detention was vitiated. He referred us to paragraphs 10(A) and 10(B) of the petition, wherein this contention is raised.
7. This contention has been met with by the Under Secretary in his affidavit-in-reply dated 1-3-1986. It is contended that it is not true to say that the State Government has not considered the representation dated 1-2-1986 filed by the detenu. It is contended that the representation dated, 1-2-1986 was received from the detenu on 2-2-1986 through the jail authority, vide its letter dated 1-2-1986. 2-2-1986 was a holiday, being Sunday. The officer concerned in the office of the Commissioner of Police, Ahmedabad City, was instructed on telephone to send parawise remarks on the said petition. The office of the Commissioner of Police Ahmedabad City, sent its parawise remarks to the Government vide its letter dated 5-2-1986 and the same was received by the Home Department on 5-2-1986 at 5-25 p.m. The N.S.A. Branch submitted the papers on 6-2-1986 for consideration and the file was marked by the Branch to DS(R), ACS (Home) and the Chief Minister. After careful consideration, the Government decided on 7-2-1986 to reject the representation and the detenu was informed of the decision of the Government through the Jail Authority, vide wireless message dated 7-2-1986 and also by a ietter dated 7-2-1986. In short, the representation dated 1-2-1986 filed by the detenu was disposed of on 7-2-1986. In view of the aforesaid contents, we are of the view that there is no delay whatsoever in considering the representation of the detenu by the State Government. We must record that Mr. H.L. Patel was candid enough to state that he could not press the ground of delay in consideration of the representation of the detenu by the State.
8. Mr. Patel, however, heavily leaned upon the alleged delay on the part of the Union of India through the State. This ground of attack has been dealt with in the affidavit-in-reply filed by Mr. V.K. Sethi. It is contended that the representation of the petitioner dated 1-2-1986 was received by the Central Government in the Ministry of Home Affairs on 12-2-1986 through Superintendent, Ahmedabad Central Prison, vide their letter dated 1-2-1986. This representation was immediately processed for consideration and it was found that certain vital information was required from the State Government for the further consideration of the matter by the Union Government. This further information was asked for from the State Government through wireless message dated 13-2-1986. This required information was received by the Central Government in the Ministry of Home Affairs on 28-2-1986, vide the State Government's letter dated 25-2-1986. The said representation was immediately processed for consideration and a final decision to reject it was taken on 7-3-1986. It is contended that all the information which was necessary to be obtained from the State was effectively available to the Central Government in the Ministry of Home Affairs for consideration only on 28-2-1986 and a final decision to reject the said representation was taken by the Central Government within six days of its effectively becoming available for consideration 1st, 2nd, 8th and 9th were closed holidays. It is also contended that the detenu was informed about the decision of the Central Government through the quickest mode of communication available, i.e. a crash wireless message of 10-3-1986 through the Chief Secretary of the Government of Gujarat, Ahmedabad, and the Superintendent, Ahmedabad Central Prison, Sabarmati. This message was followed by a letter of the same date.
9. Mr. M.T. Parmar, Under Secretary, has stated in his affidavit-in-reply dated 16-4-1986 that the order of detention was approved by the Government on 6-2-1986 and the necessary report along with the remarks of detention and other particulars, as required by Section 3(5) of the Act was sent to the Central Government on 7-2-1986. The time consumed between the filing of the representation dated 1-2-1986 and its despatch to the Central Government is also explained by Mr. B.K. Jha, the Police Commissioner. He has submitted in his affidavit that the order of detention was passed on 28-1-1986 and thereafter the report as required by Sub-section (4) of Section 3 of the Act was made to the Government on 30-1-1986. In this case, seven sets were required to be prepared for the purpose of different authorities and each set ran into 28 pages and for preparing all these sets some time was necessarily taken. Between the period from 28-1-1986 to 30-1-1986, one another detention order was passed on 29-1-1986 and certain papers were required to be prepared in that case also, so that they could be supplied to the detenu of that case along with the grounds of detention. The preparation of all these documents in both the cases, which arose almost simultaneously, were required to be typed in Gujarati language and the typist was overburdened. In the circumstances, the typist took some time for typing out documents in Gujarati language. Over and above the work of detention, the deponent Police Commissioner was also required to attend to other duties like maintenance of law and order, administrative work, etc., and therefore in these circumstances the report was forwarded to the State Government on 30-1-1986. Under the circumstances, the report was sent to the State Government with all reasonable despatch and without avoidable delay. Thereafter, sufficient time was given to the State Government for the purpose of applying the mind whether to approve the order of detention or not, and the order of detention was approved by the State Government on 6-2-1986. Thus, the report was sent to the State Government forthwith, as required by law and there was no undue delay in forwarding the report to the State Government.
10. We have stated at length the reasons given by the Under Secretary and the Commissioner of Police in explaining the delay, because these factors are also required to be kept in mind when considering the allegation of delay on the part of the Union of India. Under the aforesaid circumstances, we do not consider that there is any delay in the despatch of the representation to the Union of India, inasmuch as the representation was received by the State on 12-2-1986. The representation was immediately processed for consideration and it was found necessary to obtain certain further vital information from the State, and as stated above the same was called for with dispatch. Mr. M.T. Parmar, Under Secretary, has filed a further affidavit dated 28-4-1986 to explain the time consumed in preparing the material for being submitted to the Advisory Board and for supplying the requisite information to the Union of India. It is contended that the Central Government by a wireless message dated 13-2-1986 asked the State Government to furnish the English version of the grounds of detention of the detenu. The said wireless message was received by the Home Department on 14-2-1986. Another wireless message dated 13-2-1986 was received from the Central Government on 14-2-1986 asking the Home Department of the State Government to furnish the following particulars:
(i) Parawise comments of the Detaining Authority on the representation.
(ii) The actual date of the detention and the date on which the grounds of detention were supplied to the detenu.
(iii) The decision of the State Government on the representation.
(iv) The date on which his case was referred to the Advisory Board.
It is contended that all the papers were prepared in chronological order together with index and forwarding letter. In the meantime, the Home Department of the State had asked the Police Commissioner by a wireless message dated 6-2-1986 to furnish English version of the grounds of detention for the purpose of consideration of the representation of the detenu by the Central Government. The English version of the grounds of detention was supplied by the Commissioner of Police to the Home Department along with the letter dated 10-2-1986, which was received by the N.S.A. Branch of the Home Department on 11-2-1986 in the evening after office hours. On 15-2-1986, reference of the case of the detenu was made to the Advisory Board constituted under the N.S.A. The processing of the material and typing work took about six days. Thus, time upto 17-2-1986 was consumed in preparing the parawise remarks to the representation of the detenu and in preparing the material for being sent to the Advisory Board in time.
11. The deponent has further explained the time consumed in processing the data to be supplied to the Central Government. In processing the para-wise remarks to the representation of the detenu and in getting all the materials typed, time from 18-2-1986 to 21-2-1986 was spent. During this period, the N.S.A. Branch of the Home Department was assigned the work of detention matters arising under the provisions of PASA Act from Surat and Baroda Cities and some time was also required to be devoted to those matters. 16th, 22nd and 23rd February, 1986 were holidays. Thereafter, by a T.T. message dated 24-2-1986, the Central Government was informed that all the particulars demanded of the State Government would be sent to it immediately along with a separate letter and ultimately on 25-2-1986 all the details were sent to the Central Government. In view of these details furnished by the Under Secretary and the Commissioner of Police, we are of the view that it cannot be said that at any stage the State was guilty of delay either in considering it itself or in supplying the required information to the Union of India.
12. However, Mr. H.L. Patel submitted that the required information supplied by the State was available to the Union of India on 28-2-1986 and it took about six working days to dispose it of. The required information was received on 28-2-1986 and it was disposed of on 7-3-1986, and 1st and 2nd March, 1986 were closed holidays. The time consumed by the Union of India in deciding the representation of the detenu comes to about six working days, which in our opinion, do not constitute delay under the facts and circumstances of the present case detailed above.
13. Mr. H.L. Patel relied on certain judgments in order to bring home to us his submission about the alleged delay on the part of the Union of India in considering the representation of the detenu. Before we consider the decision submitted for our consideration, we may refer to the observations of the Supreme Court in Mst. L.M.S. Ummu Saleema v. B.B. Gujarat and Anr. : 3SCR647 . It was argued before the Supreme Court in that case that the detaining authority was under an obligation to adequately explain each day's delay, and reliance was placed on the decision in Pritam Nath Boon v. Union of India : 1980CriLJ1340 , and another judgment. In this context, the Supreme Court observed as under:.We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Francis Coralie Mullin v. W.C. Khumbra : 1980CriLJ548 . 'The time imperative can never he absolute or obsessive'.
We have cited this observation as Mr. H.L. Patel repeatedly insisted before us that the Union of India should explain each day's delay from 28-2-1986 to 7-3-1986. We hope, the above observation of the Supreme Court is an answer to Mr. Patel's insistence on the explanation of each day's delay.
14. In the same vein, a reference may also be made to observations of the Supreme Court in Raisuddin alias Babu Tamchi v. State of Uttar Pradesh and Anr. : 1983CriLJ1785 . They run as under:
The question whether the representation submitted by a detenu has been dealt with all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule of set formula nor by a mere arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case, if on such examination it is found that there was any remissness, indifference or avoidable delay, on the part of the detaining authority/State Government in dealing with the representation, the Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu, on the other hand, if the Court is satisfied that the delay was occasioned due to unavoidable circumstances or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.
15. Now, in the light of the above guidelines pronounced by the Supreme Court, we may proceed to consider the decision relied upon by Mr. H.L. Patel in Harish Pahwa v. State of U.P. and Ors. : 1981CriLJ750 . The Supreme Court has considered chronology of the matter on admitted facts. The order of detention was dated 16-5-1980 and the representation was dated 3-6-1980. The State Government received it on 4-6-1980, but for two days no action was taken in connection with it. On 6-6-1980, comments were called for from the Customs Authorities and such comments were received by the State Government on 13-6-1980. On 17-6-1980, the State Government referred the representation to the Law Department for its opinion, which was furnished on 19-6-1980. The rejection of the representation was ordered on 24-6-1980, and it was communicated to the jail authorities two days later. The Customs authorities took time from 7-6-1980 to 12-6-1980 for formulating their comments and the representation was under the consideration of the Government for four days from 13-6-1980 to 16-6-1980, of its Law Department from 17-6-1980 to 19-6-1980 and then again under its own consideration for six days from 19-6-1980 to 24-6-1980. In this context of facts, the Supreme Court observed that the manner in which the representation made by the appellant was dealt with revealed the sorry state of affairs in the matter of consideration of representation made by persons detained without trial. The Supreme Court observed as under:
There is no explanation at all as to why no action was taken in reference to the representation on 4th, 5th and, 25th June, 1980. It is also not clear what consideration was given by the Government to the representation from 13th June 1980 to 16th June 1980 when we find that it culminated only in a reference to the Law Department, nor it is apparent why the Law Department had to be consulted at all. Again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representation of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.
We have taken pains to reproduce the facts of the above decision, as they go to show that what the Supreme Court resented was the manner in which the representation was dealt with, and the delay was considered in the light of such manner in which it was dealt with. Since Mr. Patel had leaned upon this authority heavily, we have thought it proper to deal with it in detail and squarely, so that we can bring out in our judgment that the question of delay in dealing with the representation of the detenu is not to be considered on any absolute formula, but in the context of the facts of each case.
16. We may passing note that the observation which we have cited above from Mst. L.M.S. Ummu Saleema's case (supra) is of the Bench consisting of three Judges, and Harish Pahwa's case (supra) is of a Bench consisting of two Judges.
Considering, therefore, the tenor of the decisions of the Supreme Court and particularly the circumstances of the present case, we are of the view that there was no delay at all in considering the representation of the detenu either at the State and or at the Union of India end. The argument based on delay is, therefore, rejected.
17. The second submission raised by Mr. H.L. Patel is regarding the alleged disability of the petitioner. It is submitted at paragraph 6 of the petition that both his hands are completely disabled. His right hand is paralysed since his childhood and there is fracture on his left hand. It is submitted that under these circumstances the petitioner is unable to raise his hands. During the course of the matter, Mr. Patel filed an amendment application wherein the disabilities of the petitioner are stated. It is submitted that the right hand of the petitioner is paralysed since his childhood and there is fracture on his left hand since the year 1983. It is stated in the said amendment application that with Annexure 'D' a medical certificate is produced, but it appears that in fact it is not produced. This averment is controverted in the affidavit-in-reply of the Commissioner of Police, Shri B.K. Jha. It is contended at paragraph 4 of the affidavit-in-reply that it is not correct to say that the petitioner suffers from the alleged disability. It is contended that no documentary evidence is produced before the Court to prove the alleged disability. In reply to the further statement of the petitioner referred to above, it is again denied on oath that the petitioner is physically handicapped, as alleged by him. It is further contended that even if it is assumed for the sake of argument that petitioner is physically handicapped as his right hand is paralysed, even then the order of detention does not become illegal because in the grounds of detention supplied to the detenu it is specifically stated that the detenu had instigated a mob of persons, as a result of which communal disturbance had taken place. The role attributed to the detenu is that of instigating the mob. Therefore, the physical disability, if any, has nothing to do with the activity which has been attributed to the detenu. It appears to us that the abovesaid contention raised by the Police Commissioner is quite right, and the alleged physical disability does not go to vitiate the order of detention. We may reiterate to say that the petitioner has failed to prove the medical certificate of his disability, though he has stated in his statement that he is producing it.
18. The next submission of the petitioner is that he was staying at Palanpur as his house was under construction and that he was absent since last about 4 months from Ahmedabad City. He has submitted that on the day of the incident, i.e. on 5-1-1986, be was not in Ahmedabad and he was apprehended by the Police from Palanpur on 26-1-1986. This submission is squarely controverted by the Commissioner of Police, who has stated on oath that the petitioner resides in Sodagar Pole, Kalupur, Ahmedabad and it is not true that on 5-1-1986 he was not present in Ahmedabad. He has also denied the allegation of the petitioner that the petitioner was apprehended by the Police from Palanpur on 26-1-1986. In view of this categorical denial on oath by the Commissioner of Police, Mr. Patel did not press the submission of alibi further. We also reject the same argument.
19. It was next contended that the petitioner is illiterate and he has learnt to put his signature in Gujarati with great difficulty. The order of detention was in English and the grounds of detention and the documents supplied along with the grounds ran into 27 pages in Gujarati language. He was not read over and explained the contents of the order of detention and the documents and therefore, he did not have an adequate opportunity of submitting his representation. However, when Mr. J.M. Panchal, the learned Additional Public Prosecutor, confronted Mr. Patel with the original recording which showed that all this material was explained to the detenu-petitioner in Gujarati, Mr. Patel did not press the point further. We therefore, reject this argument as not pressed.
20. It was next submitted that the petitioner could not be in the crowd in the riot in regard to which a criminal case at C.R. No. 5/86 was registered and a copy of which was supplied to the petitioner with the grounds of detention. It is alleged in the same complaint that the complainant-driver, Absarkhan Sherkhan Pathan, was going to Kalupur Railway Station in a car at about 20-00 hours. On Relief Road, he was assaulted by a mob of 40 to 50 people, who attacked the car and the glass of his car was broken, causing damage of about Rs. 2,000/-. It is submitted that it would be impossible and most unreasonable to think that the petitioner would be involved in that offence, since the attack was made by the Hindus. He is also not prosecuted in that connection. Therefore, he is not concerned in C.R. No. 5/86 is a factor which ought to have been considered by the detaining authority and his not having done so betrays non-application of mind. This submission is not well-based. The allegation against the petitioner is that he had instigated a mob which consisted of Muslims against Hindus, whereas the case at C.R. No. 5/86 relates to an incident in which a Muslim driver was assaulted and his car was damaged. It is not likely, therefore, that in this incident the petitioner would be involved, and the non-inclusion of his name in the incident covered by C.R. No. 5/86 does not show, in our opinion, any non-application of mind on the part of the detaining authority. We may clarify here that this argument was not placed, as we have discussed above, in paragraph 7 of the petition, but that was how it was presented before us by Mr. H.L. Patel. But that argument has not impressed us, for the reasons stated above.
21. The petitioner submitted that the allegation against him is that he had collected a mob of about 50 persons of Muslim community on 5-1-1986 at aboot 7-45 p.m. near Kadia Kui Circle. However, he is not supplied with the statements of several persons. There is no material that the petitioner had collected the mob of about 50 Muslims near Kadia Kui Circle. Thus, the order of detention is passed without any details on record and without application of mind. In the affidavit-in-reply of the Police Commissioner, it is denied that no material whatsoever was supplied to the petitioner, that he collected the mob of about 50 Muslims near Kadia Kui Circle. The statements of the witnesses supplied to the petitioner were read before us. The analysis of the petitioner is that as there are two allegations that he collected the crowd of 50 Muslims and that he incited the mob against the Hindus and that as there is no evidence regarding the former, the omission betrays want of material on record to substantiate the order of detention. As a matter of fact, the entire incident is one and the emphasis of the Detaining Authority is on the incitement done by the petitioner to enrage the Muslims, who were there, against the Hindus. We have to consider the entire incident in general and not in fragments and that also in the background of the surcharged atmosphere from which the City of Ahmedabad in general and the concerned area in particular were suffering. There is enough evidence on record that the petitioner had incited the Muslims, who were there, to take arms against the Hindus and to go on rampage.
22. In this connection, Mr. Patel relied upon the case of Atul Gunvantrai Bhatt v. Commissioner of Police Ahmedabad and Ors. 22 GLR 1117. Mr. Patel read before us the facts of the case and the observations of the Division Bench. Since the above case was referred to draw an analogy from the facts of the reported case, we must observe that the facts of the reported case are not quite analogous to those of the present case, and again the observations made in the background of a particular set of facts must be confined to those facts. In the reported case, it was alleged in the ground of detention that the detenu Bhaskar Gunvantrai Bhatt, and his companion Gaurang C. Shah had, on February 6, 1981, at about 7-15 to 7-30 P.M. approximately collected a group of about one thousand persons near Nava Wadaj Bus Stand and incited the crowd. In this background of facts, Mr. H.L. Patel relied upon the observations of the Division Bench, speaking through Divan C.J., that there was no evidence that the detenu has collected a crowd of about one thousand persons and therefore, the Division Bench set aside the order of detention. Collecting a group of one thousand persons is indeed quite a different matter from the allegation of collecting forty to fifty persons, and secondly, as stated above, the charge against the petitioner herein is not of collecting forty to fifty persons, but is of inciting them to commit violence with arms against Hindus in the riot-stricken area of Ahmedabad which then was gripped in the intense fever of communalism. The entire City of Ahmedabad was totally disturbed and disrupted, and more so the area in which the incitement was made by the petitioner we, therefore, do not think that any analogy can be drawn from the facts of that case to the facts of the present case, for setting aside the detention order.
23.We are supported in our view by the following observations of the Supreme Court in Smt. Hemlata Kantilal Shah v. State of Maharashtra and Anr. : 1982CriLJ150 , although the observations are made in a different context:
The High Court under Article 226 and the Supreme Court either under Article 32 or 'under Article 136 do not sit on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed, the offender is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of sub-Article (5) of Article 22. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the detaining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court.
Needless it is to say that the submission made by Mr. Patel has failed to persuade us to take a view in favour of the petitioner based on the judgment of the Division Bench of this High Court in Ami Gunvantrai Bhatt's case.
24. The next emphasis by Mr. Patel was that the detention of the petitioner was mala fide, inasmuch as although he could have been prosecuted, the detaining authority had thought it proper to detain him without trial. The arguments based on non-prosecution of the petitioner is two-fold. In one breath it is said that the non-prosecution implies nonapplication of mind, and in the other breath it is alleged that it smacks of mala fides. This allegation has been met with by the Police Commissioner in his affidavit-in-reply. He has contended that he denies that the detention order is a mala fide order. He further contends that the petitioner could very well be prosecuted in a Court of law for the offences committed by him. But as stated in the grounds of detention themselves, it was found necessary to detain him as the ordinary process of criminal prosecution was not found sufficient to prevent him from carrying on the activities indulged in by him which were against the maintenance of public order. There was no idea of circumventing the ordinary prosecution, but it was necessary under circumstances then prevailing to resort to special measures, as the activities of the petitioner were found to be such which would prove an immediate threat to the maintenance of public order. In the light of this categorical deposition made in the affidavit by the Police Commissioner, we are not prepared to accept the argument of the petitioner that the non-prosecution betrayed non-application of mind and smacked of mala fides.
24.1. Mr. H.L. Patel in this context invited our attention to the observations of the Supreme Court in Kanchanlal Maneklal Chokshi v. State of Gujarat and Ors. 20 GLR 890. The observations are to the effect that if the possibility of prosecution is not considered by the detaining authority, it may lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. These observations do not apply on facts to the present case, and therefore we need no more discuss it.
25. Our attention was also invited to the observations of the Supreme Court in Smt. Hemlata Kantilal Shah's case (supra). Mr. patel read head-note (D) to emphasise that it is for the detaining authority to satisfy the Court that it had in mind the question whether the prosecution of the offender was possible and sufficient in the circumstances of the case, and he submitted that in the present case the detaining authority has tried to satisfy the Court about the possibility having been in the mind of the detaining authority by introducing such an element in the grounds of detention. Mr. Patel submitted that it was, however, a mechanical insertion without application of mind and therefore, it could not help the detaining authority. With respect, we cannot accept this argument because, in the first place, the insertion of the possibility of prosecution having been taken care of is inserted so categorically and with reasons, namely, that the prosecution would cause delay, and it was necessary to detain the petitioner urgently as a preventive measure that we do not consider such an insertion as mechanical and without application of mind. Further, the affidavit-in reply of the Police Commissioner is also clear and satisfactory.
26. We have inquired from Mr. H.L. Patel whether we have missed any of his submissions, and he has stated that all his points have been considered by us in the judgment. In view of the aforesaid discussion, we must hold that the petitioner has failed in his challenge against the impugned detention order. The petition fails and stands dismissed. Rule is discharged.