Chhagan
Bagwan Kahar Vs. N.L. Kalna & Ors [1989] INSC 92 (16 March 1989)
Pandian,
S.R. (J) Pandian, S.R. (J) Ray, B.C. (J)
CITATION:
1989 AIR 1234 1989 SCR (2) 52 1989 SCC (2) 318 JT 1989 (1) 572 1989 SCALE
(1)653
CITATOR
INFO : R 1989 SC1812 (5) F 1989 SC1881 (10,11)
ACT:
Gujarat Prevention of Anti-Social
Activities Act, 198 5:
Sections
3 and 15--Expiry or revocation of an earlier dete n- tion order--No bar for
making a subsequent detenti on order--Necessity for fresh facts for passing subseque
nt detention order.
HEAD NOTE:
With a
view to preventing the petitioner detenu from acting in any manner prejudicial
to the maintenance of public order, an order of detention was passed against him
by the Comissioner of Police, Surat City, under section 3(2) of the Gujarat Prevention of
Anti-social Activities Ac t, 1985. The grounds of detention referred to the detenu's
criminal activities connected with bootlegging on a large scale and in an organised
manner, and the several cases registered and pending against him on that
account. T he detenu's representations were dismissed by the 1st respondent and
the State Government.
It was
contended on behalf of the petitioner that t he Detaining Authority for drawing
his requisite subjective satisfaction had taken into consideration the previous
grounds of detention which were the subject matter of a Special Criminal
Application before the Gujarat High Court, and the High Court had quashed the
order of detention impugned in that case. On the other hand, it was contended
on behalf of the respondents that the earlier proceeding w as considered only
to a limited purpose of taking note of t he detenu's continued involvement in
bootlegging activities.
Allowing
the writ petition, and quashing the detention order it was
HELD:
(1) Even if the order of detention comes to an end either by revocation or by
expiry of the period of detenti on there must be fresh facts for passing a
subsequent order.
[58D] Ghulam
Nambi Zaki v. State of Jammu & Kashmir, [1970] 3 SCR 35; Hadibandhu Das v.
District Magistrate, Cuttack Anr., [1969] 1 SCR 227; HarJas Dev Singh v. State
of Punjab, [1974] 1 SCR 281 and 53 Chotka Hembram
v. State of West Bengal, [1974] 3 SCC 40 1, referred to.
(2) A
fortiori when a detention order is quashed by t he Court issuing a high
prerogative writ like habeas corpus or certiorari, the grounds of the said
order should not be taken into consideration either as a whole or in part ev en
alongwith the fresh grounds of detention for drawing t he requisite subjective
satisfaction to pass a fresh ord er because once the Court strikes down an
earlier order by issuing a rule it nullifies the entire order. [58D-E] Ibrahim Bachu
Bafan v. State of Gujarat, [1985] 2 S CC 24, followed.
(3) It
is imperative therefore to read down section 15 of the Act which provides for
the making of successive orders of detention so as to bring it in conformity with
Article 22(4) of the Constitution. [59C] Abdul Latif Abdul Wahab Sheikh v. B.K.
Jha & Anr ., [1987] 2 SCC 22 followed.
(4) In
the present case, no doubt, the order of detention contains fresh facts. In
addition, the detaining authority has taken into consideration the earlier
grounds of detention which grounds had been nullified by the High Court by
issuing a prerogative writ of habeas corpus. A copy of the earlier grounds of
detention was also one of the documents furnished to the detenu which confirms
the fact th at the detaining authority has considered the earlier groun ds of
detention alongwith other documents for drawing h is requisite subjective
satisfaction for passing the detenti on order. The order of detention is
vitiated on that groun d, and is therefore liable to be set aside. [58F. G;
59F-G] & ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 61 of 1989.
(Under
Article 32 of the Constitution of India. ) V.V. Vaze, M.K. Pandit and P.H. Parekh for the Petitioner.
P.S. Poti,
M.N. Shroff and Mrs. H. Wahi for the Respondent s.
The
Judgment of the Court was delivered by 54 S. RATNAVEL PANDIAN, J. This petition
under Article 32 of the Constitution of India is filed by the petitioner, t he detenu
herein, challenging the legality and validity of t he order of detention dated
21.10.1988 passed by the detaining authority (the Commissioner of Police, Surat
City) clamping upon the detenu the above said order of detention und er
Sub-section (2) of Section 3 of the Gujarat Prevention of Anti-social
Activities Act, 1985 (hereinafter referred to as the 'Act') on the ground that
he on consideration of t he materials placed before him was satisfied that it
was nece s- sary to make the said order with a view to preventing t he detenu
from acting in any manner prejudicial to the maintenance of public order in the
area of Nanpura Machhiw ad falling under the jurisdiction of Athwa Lines Police
Station, Surat City and directed the detenu to be detained in Sabarmati Central
Prison, Ahmedabad under the conditio ns specified in the Gujarat Prevention of
Anti-Social Activities Order, 1985. In pursuance of the impugned order t he detenu
has been detained in the aforesaid prison.
The
second respondent, the State of Gujarat, approv ed the impugned order on 26.10.1988 and confirmed the same on
13.12'. 1988. The detenu submitted his representation dat ed 15.12. 1988 which
was received by the 1st respondent on 19.12. 1988 on which date itself the same
was rejected. T he copy of the representation sent to the second respondent w
as rejected on 21.12.1988.
It is
stated in the grounds of detention that the dete nu was illegally keeping in
possession the country liquor a nd openly selling the same at the comer of Nanpura,
Machhiwa d, Masjid Wali Gali, Bhandariwad and conducting a den (Add a) and that
he had been arrested in 1988 for offences under t he Bombay Prohibition Act in
respect of which number of cas es were registered which cases are still pending
trial as disclosed in Annexure I. It is further stated that t he detenu had
engaged 10 persons whose names are given in paragraph 2 of the grounds of
detention, to accelerate h is bootlegging activities and those hired persons
who we re conducting den (Adda)under the instructions and guidance of the detenu
had been arrested in 1988 in 19 different cases under the Bombay Prohibition
Act from the detenu's ad da during police raids of which 8 cases are pending
trial a nd the remaining eleven are under investigation, the details of which
are given in Annexure 11 attached to the grounds of detention. On the above
materials and the statements of witnesses placed before him, the detaining
authority h ad satisfied himself that the abovementioned bootlegging acti v- ities
of the detenu in a large scale in an organised mann er were seriously
detrimental to the public health and we re likely 55 to endanger public health
and consequently passed th is impuged order of detention. Hence this writ
petition.
Mr.
V.V. Vaze, learned counsel appearing on behalf of the petitioner, detenu raised
several contentions assaili ng the legality and validity of the order of
detention one of which being that the detaining authority for drawing h is
requisite subjective satisfaction to clamp this order of detention upon the
petitioner/detenu had taken into consi d- eration the previous grounds of
detention which was t he subject matter of Special Criminal Application No. 46
of 1987 before the High Court of Gujarat. Since we are inclin ed to dispose of
this Writ Petition on this ground alone we a re not traversing on other grounds.Admitedly,
the Commission er of Police, Surat City passed an Order of detention. Und er Section 3(2) of
the Act on 2.1. 1987 in No. PCB/ PASA/I/ 87 on the ground that between 1984 to
1986 there were 19 cas es filed against the detenu under the Bombay Prohibition
Act of which 16 were pending in Court and three others under inve s- tigation
when this previous order was passed. The petition er filed Special Criminal
Application No. 46 of 1987 before t he High Court of Gujarat at Ahmedabad
challenging the validity of the said order. The High Court by its judgment
dated 3.
8.
1987
quashed the earlier impugned order of detention a nd directed the release of
the detenu forthwith. A copy of t he High court order is annexed to the Writ
Petition as Annexu re 'D'. The detaining authority in this case had made a
reference about the previous order in the impugned grounds of detention which
reads thus:
"You
are associated with bootlegging activity for long tim e, therefore, under order
number dated 2.1.87 you were order ed to be detained under PASA and were kept
in Baroda Centr al Jail. But you filed a petition against this order of detention
in the High Court by Special Criminal Misc. Application No. 46/1987, After this
petition was heard on 3.8.87, t he Hon'ble High Court quashed the detention
order and released you from detention. The proceedings taken against you have
had no effect on you and after you were released from the detention, you have
continued your activity." The detenu, presumably based on the above
statement, h as stated in his writ petition that the present order of dete n- tion
is clamped upon him since the earlier order passed on 2.1. 1987 had been quashed
and set aside. The detaining authority in attempting to reply 56 to the
allegations made in paragraph no. 6 of the Writ Petition, wherein it is averred
"The petitioner states that in some of the cases, the petitioner is
acquitted and in none of the cases the petitioner is convicted till today
", has made the following statement in paragraph 9 of h is counter:
"It
is submitted that the present detaining authority to ok into consideration the
previous grounds of detention also to establish that the petitioner was engaged
in bootlegging activities since long." Now on this above statement it has
been streneously urged that since the detaining authority for drawing h is
subjective satisfaction had taken into consideration all t he previous grounds
of detention, namely, the earlier grounds of detention passed on 2.1. 1987
which had been subsequent ly quashed by the High Court the present detention
order is liable to be set aside. According to learned counsel for t he
petitioner, once the previous grounds of detention had be en quashed on its
merit, then the detaining authority has no justification to take into consideration
the earlier grounds of detention for passing this present detention order which
should have been based only on the fresh grounds that we re available
subsequent to the quashing of the previous detention order. In support of this
statement several decisions were relied on about which we make reference
presently.
Firstly,
the attention of the Court was drawn to Ghul am Nambi Zaki v. State of Jammu
and Kashmir, [1970] 3 SCR 35 wherein the State contended that the existence of fre
sh material is not a condition precedent for passing the seco nd order and that
in any event, the second order can be ma de when the first order is withdrawn
or revoked for technic al defect. Hidayatullah, C.J. speaking for the bench
repelled that contention holding thus:
"The
matter is not resintegra. In a number of decisions of this Court to which reference
will be made presently, this point has been considered and it has been held
that once an order of revocation is made, another order detaining t he same
person can only be passed if some additional or fresh material is in possession
of the State Government on which action can be based." Then referring to
the decision of the Constitution Bench in Hadibandhu Das v. District
Magistrate, Cuttack and Anot h- er, [1969] 1 SCR 227, the learned Chief Justice
observed:
57
"In other words, the revocation or expiry of the previo us order cannot lead
ipso facto to a revival of the detenti on by the passing of a fresh order,
because a person who is entitled to his liberty can only be put in a second jeopar
dy when there are additional or fresh facts against him." Ultimately, he
concluded:
"As
pointed out in the All India Reporter case (Hadiband hu Das case) the inference
is very compulsive that fresh facts must be found for new orders otherwise once
the old dete n- tion comes to an end either by the expiry of the period of
detention or by the cancellation of the order of detentio n, a fresh detention
cannot be ordered." In Har Jas Dev Singh v. State of Punjab & Ors.,
[1974] 1 SCR 281, this Court while examining a similar question with regard to
validity of second detention order passed under Section 14(2) of the Maintenance
of Internal Security Act (Act 26 of 1971) on identical grounds of the earlier ord
er expressed its view:
"In
these circumstances after the date on which the ord er cease to be in force,
unless fresh facts have arisen on t he basis of which the Central Government or
State Government or an Officer, as the case may be, was satisfied that such an
order should be made, the subsequent detention on the ve ry same grounds would
be invalid." The learned counsel also cited for the same principle of law,
the decision in Chotka Hembram v. State of West Beng al & Ors., [1974] 3
SCC 401.
Those
decisions mentioned albeit are cases wherein t he first detention order ceased
to be either by revocation or by expiry of the period of detention. What would
be t he legal implications and ultimate effect of quashing an ord er of
detention by the High Court in exercise of its jurisdi c- tion under Article
226 of the Constitution of India th is Court in Ibrahim Bachu Bafan v. State of
Gujarat & Ors ., [1985] 2 SCC 25, made the following rule:
"
..... When the High Court exercises jurisdiction und er Article 226 of the
Constitution it does not make an order of revocation. By issuing a high
prerogative writ like habeas 58 corpus or certiorari it quashes the order
impugned before it and by declaring the order to be void and striking down t he
same it nullifies the order. The ultimate effect of cancellation of an order by
revocation and quashing of the same in exercise of the high prerogative
jurisdiction vested in t he High Court may be the same but the manner in which
t he situation is obtained is patently different and while o ne process is
covered by Section 11(1) of the Act, the other is not known to the statute and
is exercised by an authority beyond the purview of sub-section (1) of Section
11 of t he Act. It is, therefore, our clear opinion that in a situati on where
the order of detention has been quashed by the Hi gh Court, sub-section (2) of
Section 11 is not applicable a nd the detaining authority is not entitled to
make anoth er order under Section 3 of the Act on the same grounds." It
emerges from the above authoritative judicial pr o- nouncements that even if
the order of detention comes to an end either by revocation or by expiry of the
period of detention there must be fresh facts of passing a subseque nt order. A
fortiori when a detention order is quashed by t he Court issuing a high prerorgative
writ like habeas corpus or certiorari the grounds of the said order should not
be tak en into consideration either as a whole or in part even along- with the
fresh grounds of detention for drawing the requisite subjective satisfaction to
pass a fresh order becau se once the Court strikes down an earlier order by
issuing rule it nullifies the entire order.
In the
present case, no doubt, the order of detention contains fresh facts. In
addition to that the detaining authority has referred to the earlier detention
order and the judgment of the High Court quashing it, presumably f or the
purpose of showing that the detenu in spite of earlier detention order was
continuing his bootlegging activities.
But
what the detaining authority says clearly in paragraph 9 of his affidavit in
reply is that he took into consideration the previous grounds of detention also
for his conclusion that the detenu 'was engaged in bootlegging activities since
long'. In other words the detaining authority has taken in to consideration the
earlier grounds of detention which grounds had been nullified by the High Court
in Special Criminal Application No. 46 of 1987 by issuing a prerogative writ of
habeas corpus.
Under
Section 15 of the Act, the expiry or revocation of an earlier detention order
is not a bar for making a subsequent detention 59 order under Section 3 against
the same person. The provi so annexed to that Section states that in a case
where no fresh facts have arisen after expiry or revocation of an earlier order
made against such person the maximum period for which such person may be detained
in pursuance of the subsequent detention order shall in no case extend beyond
the period of 12 months from the date of detention under the earlier order. Chinnappa
Reddy, J. in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha and Another, [1987] 2
SCC 22 = 1987 2 SCR 2 03 speaking for the bench of this Court while dealing with
Section 15 of the Act observed:
"It,
therefore, becomes imperative to read down Section 15 of the Gujarat Prevention
of Anti-Social Activities Ac t, 1985 which provides for the making of
successive orders of detention so as to bring it in conformity with Article 22(
4) of the Constitution. If there is to be a collision between Article 22(4) of
the Constitution and Section 15 of the Ac t, Section 15 has to yield. But by
reading down the provision, the collision may be avoided and Section 15 may be
sustained." Mr. Poti has sought to explain the statement of t he detaining
authority made in his counter saying that t he earlier proceeding was considered
only to a limited purpose of taking note of the detenu's continued involvement
of bootlegging activities; but the entire grounds of earlier detention as they
were, were not considered. We are unable to accept this explanation because the
detaining authority, in the counter, in clear terms had expressed that he
considered the earlier grounds of detention also. Incidently, it was brought to
our notice that a copy of the earlier grounds of detention was also one of the
documents furnished to the detenu in the present case which confirms the fact
that t he detaining authority has considered the earlier grounds of detention
along with other documents for drawing his requisite subjective satisfaction
for passing this impugn ed order. In other words, the earlier grounds of
detention dated 2.1. 1987, quashed by the High Court was one of t he material
documents considered by the detaining authority in drawing his subjective satisfaction.
Therefore, we hold that this order of detention is vitiated on the ground that
t he detaining authority has taken into consideration the grounds of earlier detention
order along with other materials f or passing this impugned order. Hence, the
order is liable to be set aside. Accordingly, we quash the detention order on
this ground and direct that the detenu be set at liberty forthwith if his
detention is not required for any other case.
R.S.S.
Petition allowed.
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