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"Preventive Detention Shall Not Be Decided In Slipshod Manner":Gujarat HC Issues Guidelines For State, Detaining Authority [Read Order]

Mehal Jain

21 Oct 2020 3:54 PM GMT

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Preventive Detention Shall Not Be Decided In Slipshod Manner:Gujarat HC Issues Guidelines For State, Detaining Authority [Read Order]

Cautioning that the matters relating to the preventive detention should not be decided in a slipshod manner, the Gujarat High Court has asserted that it is very essential to look into the order of detention including the grounds of detention and the other materials on record threadbare and with all seriousness to ensure that the personal liberty of the detenue has been curtailed...

"At times even if the Court is not getting any proper assistance from the counsel appearing in the matter on behalf of the detenue, the Court owes a duty on its own to look into the matter threadbare", said Chief Justice Vikram Nath Justice J. B. Pardiwala.

The division bench further iterated that the concerned government pleader appearing for the State also as an Officer of the Court owes a duty to assist the Court in the right manner and in the right direction. "The endeavor of the concerned AGP appearing for the State should not be to defend the order of preventive detention at any cost even if he is convinced that the same is not in accordance with law", observed the bench.

The bench proceeded to stipulate the following guidelines for the State Government and the Detaining Authority while initiating and dealing with the proceedings under the Laws of Preventive Detention. It required the judgment to be circulated among the Home and Revenue Departments of the state and all district magistrates.

(a) The detention order in writing, soon after it is passed, should be communicated to the detenue. The detaining authority should also communicate the grounds of detention comprising of the basic facts, and the relied upon materials, in their entirety with the documents, statements, or other materials, not later than 5 days from the date of passing of the detention order.

(b) If two or more grounds are relied upon by the authority, each of the grounds should be separately and distinctly mentioned in the Detention order, as each one of the grounds if valid is sufficient to validate the order even if other grounds are vitiated or invalidated for any reason except in the case of non-application of mind.

(c) Every Detention order should be supplied with the translated legible version of all the scripts and documents relied upon, in the language he understands to make an effective representation.

(d) The detaining authority should specifically disclose with reference to each of the grounds for detention, which are all the documents relied upon and which are the documents casually or passingly referred to in the course of narration of facts (including the bail orders) and should furnish the relied upon documents along with the detention order.

If the detaining authority prefers to furnish the referred documents also, those materials also to be furnished.

(e) So far as the bail applications and orders, and violation of bail conditions are concerned, if the detenue is on bail, if the bail application and bail orders, conditions therein are with reference to any vital ground or vital materials, placing of those materials though may not always be mandatory but such requirement depends upon the facts and circumstances of each case, which the detaining authority and later the Courts should very carefully examine whether the non placing of those materials in any way prejudiced the detenue. However failure to furnish any or all the referred documents shall not invalidate the order of Detention.

(f) If the order of detention is challenged, the courts also shall have to independently consider each ground, to ascertain on each ground whether the order is sustainable or not with reference to the guidelines herein referred.

(g) If any representation is submitted by the detenue before the Detaining Authority, addressing the same to the Detaining Authority, government, or to the Advisory Board, irrespective of the fact that, to whom it is addressed, the same should be as early as possible considered by the appropriate Government, before sending the papers to the Advisory Board. If the appropriate Government revokes the detention order and directs release of the detenue, there arises no question of sending the case papers to the Advisory Board.

(h)The Government shall within three weeks from the date of the detention order, place the order before the Advisory Board along with all the materials, grounds, representation if any made by the detenue, along with any report by such officer made under subsec (3) of section 3 of the Act.

(i) The Advisory Board shall maintain records disclosing the date of receipt of the detention order and other materials, including the representation of the detenue. The Advisory Board shall consider all the materials placed before it, including the representation if any of the detenue, if necessary after calling for such further information as it deems it necessary, and if the person concerned desires to be heard, after hearing him in person and then send its report to the Government within Seven Weeks from the date of detention of the person concerned.

(j) After receipt of the report from the Advisory Board, the Government before passing any order of confirmation under section 12 of the act shall consider the representation of the detenue, if not already considered by it for reasons that, it was either directly submitted before the advisory board or the sub delegated Authority or received later after the Advisory Boards report. Therefore, it is mandatory that appropriate Government shall consider the representation of the detenue, at least once at any stage before passing the final order of confirmation.

(k) The consideration of the representation if received before confirmation, order at any stretch of imagination, cannot be done after the confirmation of the detention order. It amounts to no consideration in accordance with law and procedure.

(l) If the Advisory Board has sent a report, stating that there is sufficient cause for the detention of the person concerned the Government, may confirm or revoke the said order. If the report says that there is no sufficient cause for detention, the Government, shall revoke the detention order and cause the person to be released forth with. It has no discretion to detain such person any more for any reason on the basis of such detention order.

(m) If the order is revoked either under section 12 or under section 15 as the case may be, or the period of detention under the order is fully undergone by the detenue, in such an event the detaining authority shall forth with release such person from detention. Further the detaining authority shall not pass any extended or further detention order on the same grounds.

However, if any subsequent order of detention has to be passed, it shall be by a separate order on fresh grounds after again following the procedure, but not on the grounds on which earlier order was passed.

(n) The claim of privilege by the Detaining Authority under Section 9(2) of the Act in public interest should be meaningful and not an eye wash or mere mechanical exercise. It is this mechanical exercise of the claim of privilege under Section 9(2) of the Act which compels the Court to quash the detention orders.

(o) It is obligatory on the part of the Sponsoring Authority to make true, full and correct disclosure of all the relevant facts relating to the detenue before the Detaining Authority. If the detenue has been acquitted in any of the cases relied upon then the Sponsoring Authority owes a duty to bring such fact to the notice of the Detaining Authority along with the copy of the judgment and order passed by the Competent Court. In many matters the detention orders are quashed on this ground alone as it has been consistently held by the Supreme Court that the withholding of the vital fact that the detenue has been acquitted in some of the criminal cases relied upon against him would result in the non-application of mind of the Detaining Authority to the said fact and the same would vitiate the order of detention. The attention of the State Government and the Detaining Authority is drawn to the two decisions of the Supreme Court in (i) Ramesh vs. State of Gujarat and others, reported in AIR 1989 SC 1881 and (ii) Dharamdas Shamlal Agarwal vs. The Police Commissioner and another, reported in Judgments Today 1989 (1) SC 580.

(p) Although there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case, yet there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail. We are saying so because if the detention order is challenged the detaining authority will have to satisfy the Court the following facts :

(1) The authority was fully aware of the fact that the detenue was actually in custody.

(2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist the detention order would stand vitiated.

FACTS

The bench was hearing a writ appeal at the instance of an unsuccessful writ applicant (detenue), directed against the judgment passed by a Single Judge by which the order of preventive detention dated 12.05.2020 passed against

the appellant was affirmed. The order was by the District Magistrate, Rajkot, in exercise of his powers under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 branding the applicant as a 'dangerous person', as defined under Section 2(c) of the Act 1985.

The CJ-led bench saw that the Detaining Authority took into consideration four Criminal Cases registered against the detenue at the Gondal City Police Station. One of the four cases relied upon by the Detaining Authority is in respect of the First Information Report for the offences punishable under Sections 307, 143, 147, 148, 149, 506 (2) of the IPC and Section 135 of the Gujarat Police Act. It appeared that the Detaining Authority remained under the impression that the said case is still pending and the detenue has been released on bail in connection with the said offence. However, the correct factual position was that the First Information Report referred to above culminated in a Sessions Case and vide judgment and order dated 17.10.2019 passed by the Additional Sessions Judge, Gondal, the detenue came to be acquitted.

"We are of the view that the order of detention deserves to be quashed and set aside on the ground of non-application of mind itself. Had this material fact of acquittal in the Sessions Case No.31 of 2017 been placed before the Detaining Authority along with a copy of the judgment, it might have influenced the mind of the Detaining Authority one way or the other on the question whether or not to make the detention order", ruled the bench.

The bench als noted that the detaining authority has claimed privilege under Section 9(2) of the Act, 1985 for not disclosing the identity of the persons whose statements came to be recorded in-camera.

Section 9(2) of the Act, 1985 reads thus:

"9. Grounds of order of detention to be disclosed to detenue-

(1) ... …

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

The bench further explained that the detaining authority while exercising powers under Section 9[2] of the PASA Act for claiming privilege is expected to consider the general background, character, antecedents, criminal tendency of propensity etc. of the detenue. "In the instant case, if the grounds of detention are considered, all that is recorded by the detaining authority is that the fear expressed by the witnesses is found to be genuine and correct by the detaining authority. The detaining authority has recorded that it has carefully scrutinized, examined and considered all the materials that were produced before him by the sponsoring authority. It is, therefore, clear that the detaining authority, while verifying the statements of the witnesses and while considering the question of exercising the privilege under Section 9(2) of the PASA Act, has not taken any independent steps for considering the general background, character, antecedents, criminal tendency etc. while recording subjective satisfaction, but has relied solely on the material produced by the sponsoring authority", noted the bench.

The bench also saw that there is no contemporaneous record to indicate the steps taken by the detaining authority and the grounds and reasons for arriving at the subjective satisfaction. It therefore found it very difficult to conclude that the detaining authority has considered the general background, character, antecedents, criminal tendency and propensity etc. of the detenue while arriving at the subjective satisfaction, for the need for exercise of powers under Section 9(2) of the PASA Act and claim privilege by not disclosing the identity of the anonymous witnesses.

"In the instant case, it cannot be said that the grounds of detention disclose the grounds and reasons which weighed and considered by the detaining authority for exercising powers under Section 9(2) of the PASA Act", concluded the bench.

"The question of personal liberty of a person is sacrosanct and the State authority cannot be permitted to take it away without following the procedure prescribed by law, otherwise it would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution", reiterated the bench.

By placing reliance on Section 6 of the Act, it was sought to be argued on behalf of the State that where a person has been detained in pursuance of an order of detention under section 3 on two or more grounds, such order of detention is deemed to have been made separately on each ground.

"The plain reading of the above quoted provision of section 6 of the Act would indicate that the same would not apply in cases where the order of detention suffers from the vice of total non-application of mind on the part of the detaining authority", said the bench, quashing the detention order.

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"Preventive Detention Shall Not Be Decided In Slipshod Manner":Gujarat HC Issues Guidelines For State, Detaining Authority [Read Order]

Mehal Jain

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