Supreme Court of India
JAHANGIRKHAN FAZALKHAN PATHANversusPOLICE COMMISSIONER, AHMEDABAD & ANOTHER
- Citation
- 1989 INSC 214
- Decided
- 27 July 1989
- Disposal
- Case Allowed
- Bench
- B C RAY
Holding
A detention order is invalid if the detaining authority considers previous grounds of detention that have been quashed, and vague or undisclosed grounds further vitiate the order.
Summary
J.F. Pathan was detained on 12 October 1988 under Section 3(1) of the Gujarat Prevention of Anti‑Social Activities Act, 1985. He had earlier been detained in 1985 under the National Security Act and in 1986 under the same PASA Act, both orders later quashed by the Gujarat High Court. The detaining authority, in forming its subjective satisfaction for the 1988 detention, relied on the earlier quashed orders and included them in the grounds of detention, while also failing to disclose the names and addresses of witnesses and making vague allegations. The Supreme Court held that a detention order is vitiated if it takes into account previous grounds of detention that have been set aside by a court, regardless of any fresh facts, and that vague averments and non‑disclosure of witnesses render the order illegal. Consequently, the petition was allowed, the 1988 detention order was set aside and Pathan was ordered to be released.
Issues considered
- Whether a detention order under the Gujarat PASA Act can be validly made when the detaining authority relies on earlier grounds of detention that have been quashed by a court.
- Whether non‑disclosure of witness identities and vague, unspecific allegations in the grounds of detention violate the requirements of Section 3(1) of the PASA Act.
Legislation cited
Subjects
preventive detentionsubjective satisfactionquashed ordervaguenessnon‑disclosure of witnessespublic orderanti‑social activities
Judgment
.,
... JAHANGIRKHAN FAZALKHAN PATHAN
V.
A
POLICE COMMISSIONER, AHMEDABAD & ANOTHER
JULY 27, 1989
IB.C. RAY ANDS. RATNAVEL PANDIAN, JJ.] B
--4
Gujarat Prevention of Anti-Social Activities Act, 1985: Section
3( /)-Detention-Order cannot be made after considering previous
grounds of detention quashed by Court.
··-r·
'
Vague averments made in grounds of detention-Bad in law:
c
~- The petitioner was detained on October 12, 1988 under Section
3( 1) of the Gujarat Prevention of Anti-Social Activities Act, 1985. The
grounds of detention and documents mentioned therein were served on
him on the date of detention.
D
Earlier, the petitioner was detained in 1985 under the National
Security Act, 1980 and was released. Again in 1986 he was detained
under the Gujarat Prevention of Anti-Social Activities Act, 1985. On a
writ petition, the Gujarat High Court quashed the detention order and
released him. These two detention orders were also taken into consi-
deration by the Detaining Authority in arriving al his subjective E
satisfaction as regards detention of the petitioner in 1988.
• In the present writ petition, the petitioner has challenged the
detention order passed on 12.10.88 on the grounds that the order was
vitiated since the Detaining Authority relied upon earlier detention§ in
arriving at his subjective satisfaction, non-disclosure of names and F
addresses of witnesses whose statements were mentioned ii! the grounds
or detention and the vagueness of the statements made in the grounds of
detention.
On behalf of the Respondents it was contended that though the
earlier two detention orders were mentioned in the grounds of detention G
they were not considered by him in forming his subjective satisfaction
'( for clamping the order of detention.
Allowing the \\' rit Petition,
HELD: 1. It is now well settled that while comidering the scope of H
583
584 SUPREME COURT REPORTS 119891 3 S.C.R.
A Section 15 of the Act the modification and revocation of detention order
by the State Government shall not bar making of another detention
order on fresh facts when the period of detention bas come to an end
either by revocation or by expiry of the period of detention. But an
order of detention cannot be made after considering the previous
grounds of detention when the same had been quashed by the court, and
B if such previous grounds of detention are taken into consideration while
forming the subjective satisfaction by the detaining authority in making
a detention order, 'the order of detention will be vitiated. It is of no
consequence if the further fresh facts disclosed in the grounds of the ·
impugned detention order have been considered. [588F-G; 589A-BI ~
Abdul Latif Abdul Waheb Sheikh v. B.K. Jha and Anr., [198712
c SCC 22 and Chhagan Bhagwan Kahar v. Shri N.L. Kaina & Ors., JT
1989 I SC 572, relied on.
2. In the instant case, admittedly in the grounds of detention
specific reference has been made to the earlier two orders of detention
D made in 1985 and 1986 against the petitioner. The contention that
though the earlier two detention orders have been mentioned in the
grounds of detention and the copy of the orders passed in the previous
detention cases as well as the grounds of detention were supplied to the
detenu, yet these were not at all considered by the detaining authority in
forming his subjective satisfaction for clamping the order of detention,
E cannot be sustained in view of the statements made in the grounds of
detention. [589C-EI
.3. The other grounds regarding the vagueness of the averments
made in the grounds about the petitioner indulging in criminal activities
apart from the five criminal cases lodged under the Prohibition Act and
F mentioned in the grounds of detention do not satisfy the requirements
envisaged in s. 3( I) of the Act inasmuch as the said five specific criminal
cases have no connection with the maintenance of public order. The
aforesaid criminal activity does not appear to have disturbed the even
tempo of life of the people of the particular locality. These statements
are vague and without any particulars and such vague averments made
G in the grounds of detention are bad inasmuch as the detenu could not
make an effective representation against the impugned order of<leten-
tion. As such the detention order is illegal and bad. [589F-HI
Abdul Razak Nanhekhan Pathan v. The, Police Commissioner,
Ahmedabad & Anr., [198913 S.C.R. 569, referred to.
H
J.F. PATHAN v. POLIC:E COMMR. !RAY. J.I 585
-1
ORIGINAL JURISDICTION: Writ Petition (Criminal) A
No. 485 of 1988.
(Under Article 32 of the Constitution of India).
T. U. Mehta and S.C. Patel for the Petitioner.
B
G.A. Shah, Mrs. H. Wahi and M.N. Shroff for the Respondents.
l The Judgment of the Court was delivered by
't
,. B.C. RAY, J. The petitioner has questione~ in this writ petition
the legality and validity of the impugned order of detention made on
October 12, 1988 by the respondent No. 1 under sub. s. 1 of sec. 3 of
c
the Gujarat Prevention of Anti-Social Activities Act, 1985 with a view
to prevent him from acting in any manner prejudicial to the main-
tenance of public order in the area of Ahmedabad city. The petitioner
was detained by the respondents and was served with the grounds of
detention alongwith the documents mentioned therein on the very day D
of detention that is, October 12, 1988. The grounds of detention were
'
in Gujarati.
,1
The petitioner in the writ petition bas stated that he was pre-
viously detained under the National Security Act, 1980 S.R. No.tPCB/
DTN/PASA/37 /85 on May 23, 1985 and was released on June 28, 1985. E
• The petitioner had been detained under the Gujarat Prevention of
Anti-Social Activities Act, 1985 hereinafter referred to in short, 11s
'PASA Act'. The said order was challenged by writ petition before the
Gujarat High Court which quashed the same and the petitioner was
~ released from detention. The main ibrust of challenge to the impugned
order of detention is that the detaining authority in addition to. new F
facts has taken into consideration·the earlier two detention orders as
well as the grounds of detention referred to therein presumably for the
purpose of arriving at his subjective satisfaction that inspite of the
earlier detention order which was of course, qwisbed and set aside the
detenu has been persistently continuing bis anti-social activities and as
such the order of detention was clamped. "lbis has vitiated the G
~ impugned order of detention. Other challenges such as non-disclosure
of names and addresses of four witnesses whose statements have been
mentioned with the grounds of detention and have been served along-
with the grounds as well as the vagueness·of the statements made in the
grounds about the alleged criminal activities of the detenu has
rendered the order illegal and bad as the petitioner was prevented H
from making an effective representation against the same.
586 SUPREME COURT REPORTS I 1989) 3 S.C.R.
A The relevant portion of the grounds are extracted hereunder:
"You are indulged into anti-social activities by selling
stocking and keeping in possession of yourself or through
other person the English and Deshi liquor of Dariapur area
in this connection the offences under Bombay Prohibition
B
Act, 1949 are registered against you, wherein you were
arrested, the details of which is as under:
'
S. No. Police
Station
Office
Register No.
Section Stock
Seized
Disposal t"-
c ~
1. Dariapur 106/88 Prohibition 7575 ml. under
Act, ss. 66(3), English investi-
65(A), (E), 68,5 Lt. Deshi gation
81, 85(1)(3) Liquor.
Rs.1971.
D
2. Dariapur 120/88 Prohibition 8640ml. under
Act, secs. English investi-
66(3), 65(A), liquor. gation.
(E), 68, 81,
85( 1)(3). Rs. 940.
E 'o. " 137/88 Prohibition 3105 ml.
Act, secs. English
•
668, 65(E), liquor.
81, Rs. 940.
F
4. " 145/88 166 bottles.
English
liquor.
Rs. 1300.
,,
•
5. " 146/88 Prohibition 82Lt.
Act, s. 66B, English
65E. liquor.
G Rs.800.
---------------------------------------------------------------------------------------------
Accordingly, upon careful perusal of the complaint and
papers enclosed with the proposal it appears that you are a
Prohibition Bootlegger, and doing illegal activity of selling
english and deshi liquor. You and your companions are
H bearing and showing deadly weapons like Rampuri knife to
J.F. PATHAN v. POLICE COMMR. [IµY, J.J 587
·-1
the innocent persons passing through the sail;! locality on A
the promise of being 'Batmidar' of police. And you are
beating the person who oppose your activity of liquor, you
are compelling to bring stock of liquor to the Motor Vebi-
des like Auto Rickshaw and upon denial to do so, you
threat to kill him by Rampuri knife your customers who are
drunken are teasing to the women passing from there, and B
if any one oppose or request not to do so, your threats
showing Rampuri knife to kin.to the innocent persons are
and an atmosphere of danger and violence is spread over
~· because of your such offensive activities and as you are
doing acts which are obsfructive in maintaining public ad-
~ ministration. You are an obstruct in maintaining public
c
administration.
You are an obstruct in maintaining public administra-
lion in view of the fact and result o.f ·your above stated
anti-social activities, and fact of such instances. are also
stated by the peace loving people doing business in tbe D
above area, copies of their statements are given to you
herewith.
J As your offensive activities are obstructive in public
administration you were detained under NASA 1980 by
this office order No. PCB/DTN/NSA/37/85 date 23.5.85 E
• and were released from detention on 28.6.85 .
And your offensive activities are obstructive to the
maintenance to public administration that you were
detained under PASA Act, 1985 by this office order No.
PCB/DTN/PASA/36/86 dt. 26.9.86, as you have filed writ F
petition in the Honourable Gujarat High Court against this
order the Honourable High Court has on 25.6.87 passed an
order to release you from detention.
Accordingly, looking to the overall fact, I am satis-
fied that you are prohibited bootlegger and known a head- G
strong and angry person, and an atmosphere of fear and
violence is spread over in residents of the said locality
because of your above anti-social activities, such activities
cannot be refrained by taking steps under the common
law."
H
The affidavit of reply affirmed by Mr. S.N. Sinha, Commissioner
588 SUPREME COURT REPORTS [ 1989] 3 S.C.R.
A of Police, Ahmedabad city has been filed on December 7_;.)988. In
paragraph 4, 1t has been stated that in fact the petitioner belongs to the
gang of Abdul Latif and has not at all been falsely prosecuted in any
case, it has also been submitted that the petitioner was not good and
was involved in activities which affect the society adversely. In
paragraph 9 of the said affidavit it has been denied that the grounds
B are not relevant for the purpose and the present detention order has
been passed totally on a different and fresh grounds. It has also been
submitted therein that it is absolutely wrong to say that the earlier two
orders passed against the petitioner were illegal in any manner. Out of
the two detention orders, order of 1985 was passed under the National
Security Act in view of the fact of public riots in the Ahmedabad city
c and order of 1986 was passed on the ground of the petjtioner ,being
bootlegger and dangerous person on account of pendency of certain
prosecution and both of which were passed by his predecessor and
therefore, the said orders have nothing to do with the present orders.
It has been further submitted that it is absolutely wrong to say that the
sponsoring authority has not submitted the earlier order of release of
D the petitioner by the Boatd and the Gujarat High Court. The grounds
of detention make it abundantly· clear that this fact was clearly con-
sidered and thereafter the detention order has been passed and there-
fore, there is no substance in the contention that the decision of deten-
tion would have been different if the earlier orders of release would
have been placed before him.
E
The most important question that posed itself for consideration •
in this case is whether the detaining authority while considering the
fresh facts disclosed in the grounds of detention has taken into consid-
eration the earlier two detention orders-one of 1985 under the
National Security Act and the other of 1986 under the PASA Act in
F forming his subjective satisfaction that the detenu inspite of the pas-
sing of the earlier two detention orders has been persistingly indulging
in his anti-social activities and as such in preventing such criminal
activities which posed a threat to the maintenance of public order the
impugned order of detention has been made b~ him. It is now well
settled by the decision of this court while oonsidering the scope of s. 15
G of P ASA Act that the modification and revocation of detention order
by the State Government shall not bar making of another detention
order on fresh facts when the period of detention has come to an end
either by revocation or by expiry of the period of detention.
Reference may be made in this connection to the decision of this
H court in Abdul Latif Abdul Waheb Sheikh v. B.K. Iha and Anr., [1987)
J.F. PATHAN v. POLICE COMMR. !RAY, J.I 589
2 SCC 22 and in Chhagan Bhagwan Kaharv. Shri N.L. Kaina & Ors., A
JT 1989 1 SC 572 it is therefore, clear that an order of detention cannot
be made after considering the previous grounds of detention when the
same had been quashed by the court, and if such previous grounds of
detention are taken into consideration while forming the subjective
satisfaction by the detaining authority in making a detention order the
order of detention will be vitiated. It is of no consequence if the B
further fresh facts disclosed in the grounds of the impl.lgned detention
order have been considered.·
in the present case, admittedly in the grounds of detention
specific reference has been made to the earlier two orders of detention ••·
made in 1985 and 1986 against the petitioner. It is also evident that in C
the schedule of documents annexed to the grounds of detention not
only the copies of the order of detention but _also of the grounds of
detention in the earlier detention cases have been given to the
petitioner. It also appears from the statements made in the grounds of
detention that the detaining authority took into consideration the pre-
vious grounds of detention as well as the orders made therein even D
though the same were nullified by the High Court as well as by the
Advisory Body, presumably, for the purpose of showing that the
detenu inspite of those earlier orders of detention was continuing his
bootlegging activities. It has been tried to be contended on behalf of
the detaining authority that though the earlier two detention orders
have been mentioned in the grounds of detention and the copy of the E
orders passed in the previous detention cases as well as the grounds of
- detention were supplied to the detenu yet these were not at all con-
sidered by him in forming subjective satisfaction for clamping the
order of detention. This submission cannot be sustained in view of the
statements made in the grounds of detention.
F
The other grounds regarding the vagueness of the averments
made in the grounds about the petitioner indulging in criminal
activities apart from the five criminal cases lodged under the Prohibi-
tion Act and mentioned in the ground of detention do not satisfy the
requirements envisaged in s. 3(1) of the PASA Act inasmuch as the
said five specific criminal cases have no connection with the main- G
tenance of public order. The aforesaid criminal activity does not
appear to have disturbed the even tempo of life of the people of
Ahmedabad City or of the particular locality. Further more the aver-
ments have been made in the grounds are: ·
"Accordingly, . upon careful perusal of complaint and H
590 SUPREME COURT REPORTS I19891 3 S.C.R.
papers enclosed with the proposal it appears that you are a
A
prohibition bootlegger, doing illegal activity of selling eng-
lish and deshi liquor. You and your companion are bearing
and showing deadly weapons like Rampuri knife to the
innocent persons passing through the said locality on the
pro~ise of beating 'Batmider' of police. And you are beat-
B ing innocent persons who oppose your activity of liquor
etc."
These statements are vague and without any particulars as to what
place or when and to whom the detenu threatened with Rampuri knife i··
and whom he has alleged to have beaten. These vague averments
C made in the grounds of detention hereinbefore are bad in as much as
the detenu could not make an effective representation against the ~
impugned order of detention. As such the detention order is illegal and
bad. It is pertinent to refer to the decision of this court in the case of
Writ Petition (Crl.) No. 15/1989 (judgment of which has been pro-
nounced today) on this score. It is net necessary to consider and decide
D other questions raised in this writ petition.
For the reasons aforesaid, we allow the writ petition and set
aside the impugned order of detention made against the petitioner. We
direct the respondents to set free the petitioner forthwith.
E G.N. Petition allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "preventive detention"Sign in to search