Arif Alias Katto Iliyasbhai Arab ... vs State Of Gujarat
2021 Latest Caselaw 1737 Guj

         C/SCA/7617/2020                                  ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 7617 of 2020

==========================================================
                ARIF ALIAS KATTO ILIYASBHAI ARAB
           THROU FRIEND PATHAN IMRANKHAN TAHIRKHAN
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:

MR O I PATHAN, ADVOCATE for the Petitioner

MR HARDIK SONI, ASSISTANT GOVERNMENT PLEADER
for the Respondents - State Authorities
==========================================================

 CORAM: HONOURABLE MR. JUSTICE PARESH UPADHYAY

                           Date : 05/02/2021

                            ORAL ORDER

1. This matter is listed 'for orders' before this Court today.

2. Challenge in this petition is made to the order passed by the Commissioner of Police, Ahmedabad dated 10.04.2020, whereby the petitioner was detained under the Gujarat Prevention of Anti Social Activities Act, 1985 branding him as 'a dangerous person' within the meaning of Section 2(c) of the Act.

3. This petition was heard and allowed by the Co-ordinate Bench of this Court (Coram : Hon'ble Mr. Justice G.R. Udhwani) vide oral judgment dated 05.11.2020. Farad was sent to the Registry and writ was also issued accordingly. The petitioner / detenue is already released from the jail. The oral judgment

C/SCA/7617/2020 ORDER

was typed by His Lordship's Secretary and the said draft was corrected also. The said corrected draft is on file. Because of the sad demise of the Hon'ble Judge, the final order as per the said draft is yet to be signed. It is under these circumstances, papers are placed before this Court for signature on the said order.

4. The said oral judgment dated 05.11.2020, as is available in the computer system, with corrections, read as under.

"R/SPECIAL CIVIL APPLICATION NO. 7617 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE G.R.UDHWANI

====================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

                     2           To be referred       to    the
                                 Reporter or not ?

                     3           Whether their Lordships
                                 wish to see the fair copy of
                                 the judgment ?

                     4           Whether this case involves
                                 a substantial question of
                                 law as to the interpretation
                                 of the Constitution of India
                                 or    any    order    made
                                 thereunder ?

===================================================== ARIF ALIAS KATTO ILIYASBHAI ARAB THROU FRIEND PATHAN IMRANKHAN TAHIRKHAN Versus STATE OF GUJARAT =====================================================

C/SCA/7617/2020 ORDER

Appearance:

GOVERNMENT PLEADER(1) for the Respondent(s) No. 1 RULE NOT RECD BACK(63) for the Respondent(s) No. 2,3 ===================================================== HONOURABLE MR. JUSTICE G.R.UDHWANI

Date : 05/11/2020

ORAL JUDGMENT The petitioner is here before this Court invoking Article 226 of Constitution of India to secure his liberty as guaranteed under Article 21 of the Constitution of India which could have been taken away only in accordance with the procedure established by law. The impugned order dated 10/04/2020 is passed by respondent No.2 terming the petitioner as 'dangerous person' in exercise of powers under Section 3 read with Section 2(c) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short "PASA").

2. For the purpose of subjective satisfaction, two FIRs registered respectively in the year 2018 and 2019 with Ishanpur Police Station alongwith the investigation papers and two pretended statements of independent witnesses unconnected with the said criminal cases purportedly recorded in-camera have been relied upon. The petitioner has been attributed with the offences punishable under Sections 143, 147, 149, 332, 337, 435 and 186 of the Indian Penal Code; he allegedly picked-up quarrel with the Police during the raid on a gambling den allegedly operated by the petitioner. In the criminal case lodged in 2019, the petitioner is attributed with act of taking out the rally protesting the Citizenship Amendment Bill without permission of the Police.

3. According to the learned Counsel for the petitioner, the petitioner was behind the bar since 19/12/2019 and even on 10/04/2020 when the aforementioned two independent statements are said to have

C/SCA/7617/2020 ORDER

been recorded, he was in jail.

4. Having considered the material on record with the assistance of learned Counsel for the petitioner and learned AGP, it appears that at the relevant point of time i.e. in the year 2018 and 2019 after registration of two criminal cases, no necessity was felt when it ought not to have felt, to inquire into the conduct of the petitioner for the purpose of Section 3 of PASA and the necessity has been pretended for the first time only on 10/04/2020 when the necessity had mellowed down while the petitioner was in judicial custody. The cause for delaying the inquiry into the conduct of the petitioner immediately on the lodgment of the criminal cases above referred would have served the purpose of PASA, but it is a mystery not unfolded by justifiable reasons, in the order of detention. The cause for selecting the date falling months beyond the registration of the two FIRs for recording of the statements of purported independent witnesses in-camera is also a mystery. The two purported independent witnesses date back the criminal act attributed to the petitioner respectively to three and half months, and four months preceding their statements made on 10/04/2020. Needless to say that, if the attribution to the petitioner in the two cases were correct, the criminal acts so attributed to the petitioner would necessarily fall before 19/12/2019. The petitioner's judicial custody since 19/12/2019 provided the safer platform to the makers of the said statements. The two witnesses also attribute to the petitioner the charging against the gatheration during each of the incident, in order to instill fear in them; no statements of the members of such gatheration who could have safely made the statements in absence of the petitioner who was in custody have been recorded. No explanation is given for this fallacy.

5. This Court is conscious of the legal position that the adequacy

C/SCA/7617/2020 ORDER

of the material leading to the subjective satisfaction necessitated under Section 3 of the Act for detention cannot be appreciated as a court of appeal under Article 226 of the Constitution of India. At the same time, those asserting an authority of curtailing the liberty of a person while invoking the exception to Article 21 of the Constitution of India namely "in accordance with the procedure established by law", owe an explanation to the Constitution that the powers have been exercised strictly within the four corners of such exception; needless to say that ingenuity would necessarily reduce the bona-fides into a doubt. It cannot be disputed that the need to prevent prejudice to the maintenance of public order by detention of the person is a need of extreme urgency to serve the public interest; and the delayed action under Section 3 of the Act would necessarily irretrievably frustrate the object and purpose of PASA. The lodgment of a criminal case against the person answering the definition comprised in Section 2(b), 2(bb), 2(bbb) and 2(c) of the Act would trigger an immediate necessity to inquire into the conduct of a person so that the prejudice to the larger public interest as indicated in Section 3 of PASA is protected. Although, the delayed action if explained would still be acceptable; however when the actions are bereft of transparency expected by law in the sense that the acts of an authority are found to be mysterious, the inaction when the action was extremely required by law and the action when it was not required by law would necessarily place such actions and inactions under a serious cloud of doubts. The question in such a case would be whether action is taken in conformity with the authority vested in the detaining authority or some object not germane to PASA is sought to be achieved. Nonfeasance when action was expected by law, if unexplained, would be fatal. Section 3 requires emergent action to prevent the prejudice to the maintenance of public order and inquiry into the conduct of the petitioner was immediately required when his acts confirmed being 'dangerous person'

C/SCA/7617/2020 ORDER

immediately after lodgment of the complaint and in absence of the justification of delayed inquiry, as also in absence of the cause for abrupt delayed inquiry, bona-fides of the detaining authority would be in doubt, more so when the statements of the independent witnesses recorded after several months are found to be parrot like or cyclostyled statements.

5.1 In each of the two statements of independent witnesses above- referred, two different stories attributing certain criminal acts to the petitioner have been recorded. In each of the statements, the petitioner is quoted asserting to the witnesses that he is a head-strong person; in each of the statements, it is shown that during the incident, public gathered and in each of the statements, the petitioner is attributed with a charge against the gatheration to instill the fear in them. If the stories contained in the statements were correct, nothing prevented the Police to inquire into the conduct of the petitioner when he came to be arrested on 19/12/2019. When it is a question of liberty of a person, strict compliance of the Article 21 and strict compliance of the provisions of law authorizing detention without trial would be the rule with no exception whatsoever.

6. No material is shown to this Court even from the FIRs and the charge-sheet papers leading to the subjective satisfaction as a justification for the purpose of exercise of powers under Section 3 of the PASA.

7. Thus, in view of the foregoing discussion, the case is made out for quashing and setting aside the impugned order of detention and ordering the immediate release of the petitioner if not detained or arrested in any other case. Accordingly, the petition is allowed and impugned order is quashed and set aside; petitioner is ordered to be set

C/SCA/7617/2020 ORDER

at liberty forthwith if not arrested or detained in any other case. Direct service is permitted.

(G.R.UDHWANI, J)"

5. Ordered accordingly.

(PARESH UPADHYAY, J) M.H. DAVE/37