AHMEDHUSSAIN SHAIKHHUSSAIN © AHMED KALIOversusCOMMISSIONER OF POLICE, AHMEDABAD & ANR.

  AHMEDHUSSAIN SHAIKHHUSSAIN © AHMED KAUO                                    A
                                    V,
   COMMISSIONER OF POLICE, AHMEDABAD & ANR.

                        SEPTEMBER 19, 1989

          [RANGANATH MISRA AND G.L. OZA, JJ.]                                B

     Gujarat Prevention of Anti-Social Activities Act, 1985: Sections 3
and 9-Detention Order-Satisfaction of detaining authority-Not
open to judicial review-Disclosure of adequate facts to enable full and
adequate representation-Necessity for.

      The petitioner was directed to be detained under section 3(2) of
                                                                             c
the Gujarat Prevention of Anti-social Activities Act, 1985. In the
grounds of detention it was alleged that the petitioner was conducting
anti-social activities of illegally storing indigenous and foreign liquor in
his possession and selling it by himself and through his men and that he
and his men beat innocent citizens thereby creating an atmosphere of D
fear and terror and he had thus become obstructionist in the main-
tenance of public order. Reference was made to a previous order of
detention which had-been set aside by the High Court, and to the fact
that notwithstanding the previous detention, the petitioner continued to
carry on his crintinal and anti~social activities affecting maintenance of
public order. It was further stated in the grounds that the detaining E
authority had considered taking action_against the petitioner u/s. 93 of
the Prohibition Act for good conduct, and under sections 56B and 57(c)
of the Bombay Police Act for his externment, but all these steps were
either found not feasible or adequate. It was then stated that there was a
possibility of the petitioner, who was in jail, being released on bail and
continuing his criminal activities, and to prevent the same there was no F
other alternative except to pass the order of det_ention.

     Allowing the writ petition and quashing the order of detention this
Court,

      HELD: (1) The satisfaction of the detaining authority is not open G
to judicial review but a citizen is entitled to protection within the mean-
ing of Article 22(5) of the Constitution of the procedural guarantees
envisaged by law, and the Court frowns upon any deviation or infrac-
tion of the procedural requirements. [184A-B]

      (2) The fact that the detenu was in jail at the time the order of H
                                   177
    178         SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

A   detention was made and the possibility of his release from jail being
    made•a ground of detention is not approved of by this Court. ll84CJ

         Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232;
    Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., [1986] 4 SCC 416
    and Smt. Shashi Aggarwal v. State of V. P., A.l.R. 1988 SC 596, referred to.
B
          (3) The detaining authority must disclose in a case where
    the detenn is already in jail that there is cogent and relevant
    material constituting fresh facts to necessitate making of an order of
    detention. [184F]
          Abdul Razak Abdul Wahib Sheikh v. Shri S.N. Sinha, Commis-
C sioner of Police, Ahmedabad & Anr.,, J.T. 1989 I SC 478 and Ramesh
    v. State of Gujarat, J .T. 1989 3 SC 279, referred to.
          (4) There is a wide gap between law and order and public order.
    The criminal offence may relate to the field of law and order but such an
    offence would not necessarily give rise to a situation of public order.
D   Depending upon peculiar situations, an act which may otherwise have
    been overlooked as innocuous might constitute a problem of public
    order. Selling of liquor by the petitioner would certainly amount to an
    offence under the Prohibition Act but without something more would
    not give rise to a problem of public order. Similarly commission of any
    other criminal offence-even assault or threat of assault-would not
E   bring the matter within the ambit of public order. [I85B-C]

          (5) Disclosure of adequate facts to enable a full and adequate
    representation to the Preventive Detention Board is one of the positive
    guarantees within the scope of Article 22(5) of the Constitution. In the
    present case the grounds of detention show that the allegations are more
F   or less vague and have the effect of making it difficult for the petitioner
    to make an adequate representation. I185D-E]

          A.K. Roy's case, [1982] l SCC 272, referred to.

         (6) The grounds of detention show how helpless the authorities
G feel in the matter of enforcing prohibition within the State. ll86B]

      · (7) It is perhaps necessary to indicate that the provisions of the
  Prohibition Act of 1949 or the Bombay Police Act should be suitably
  amended to meet the requirements of society. Even if the provisions
  under those Acts are made stringent the person proceeded against has
H the benefit of a trial or a regular hearing and pursuing an appeal
          AHMEDHUSSAJN v. COMMR. OF POLICE [MISRA, J.J                 179

against adverse orders, but in a case of preventive detention trial is
                                                                             A
avoided and liberty is taken away without providing a right to defend
himself. [J85H; J86A]
         ,,
      CRIMINAL ORIGINAL                JURISDICTION: Writ         Petition
(Crl.) No. 54 of .1989.
                                                                             B
     (Under Article 32 of the Constitution of India).

     T.U. Mehta and S.C. Patel for the Petitioner.

     S.K. Dholakia, M.N. Shroof and Ms. Hemantika Wahi for the
Respondents.
                                                                             c
     The Judgment of the Court was delivered by

      RANGANATH MISRA, J. The Commissioner of Police,
Ahmedabad by his order dated 26. 12. 1988, directed the detention of
the petitioner under section 3(2) of the Gujarat Prevention of Anti·         D
Social Activities Act, 1985 (hereinafter referred to as 'the Acf). The
pettioner was taken into custody under the order on that very day.

     The material portion of the order of detention stated:

              "WHEREAS, I.S.N. Sinha, Commissioner of Police,                E
              Ahmedabad City, am empowered in this behalf by the
              Government of Gujarat by its order, Home Department
              No. G.G./155/SB-IV/PASA/1085/1191 dated 28.5. 1985
              under sub-section (2) of section 3 of the Gujarat Preven-
              tion of Anti-Social Activities Act, 1985.
                                                                             F
                    AND WHEREAS, I am satisfied with respect to
              person known as Shri Ahmed-hussain © Kalio Shaikh-
              hussain Shaikh resident of Dariyapur, Bukhari Mohallo,
              Ahmedabad City, that with a view to preventing him from
              acting in any manner prejudicial to the maintenance of
              public order in the area of Ahmedab1(d City, it is necessary   G
              to make an order directing that the said Shri Ahmedhussain
              © Shaikhhussain Shaikh be detained.

                   NOW, THEREAFTER, in exercise of the powers
              conferred by sub-section (1) of section 3 of the Gujarat
              Prevention of Anti-Social Activities Act, 1985, I, S.N.        H
    180         SUPREME COURT REPORTS               [1989] Supp. 1 S.C.R.

               Sinha, Commissioner of Police, Ahmedabad City hereby
A
               direct that the said Shri Ahmedhussain © Kalio Shaikh-
               hussain Shaikh be detained."
                                                                 ..
          The grounds communicated to the petitioner under section 9( 1)
    of the Act alleged that the petitioner was conducting anti-social
B   activities of illegally storing indigenous and foreign liquor in his pos-
    session and was selling it by himself and through his men in the area of
    Dariyapur and three prosecutions had been launched against him
    under the Bombay Prohibition Act of 1949. From the particulars it
    appeared that one case was pending in court while the other two were
    under investigation. The detaining authority thereafter stated:
c               "Thus on careful study of the above-said complaints and
                entire papers with the proposal, it is found that you are a
                prohibition 'bootlegger' and are conducting anti-social
                activities of selling indigenous and foreign liquor illegally.
                You and your companions beat the innocent citizens of the
D               above-stated area in public and create an atmoshpere of
                fear and terror for continuing your criminal anti-social
                activities. Moreover, you and your companions are creat-
                ing atmosphere of fear by beating the innocent citizens,
                threaten them to kill while passing through that area by
                showing dangerous weapons suspecting them to be the
E               informants of the police. The customers of your adda in
                drunken condition play mischief, and beat the persons in
                open; people residing there have fear and terror is spread
                in the said area. Moreover, you beat those who oppose
                your bringing the quantity of wine and you threaten to kill
                and you create an atmosphere of fear and terror. Because
F               of such activities, the citizens residing in the above-stated
                area have fear of damage to their property and the safety
                 for themselves. Thus you become an obstructionist in the
                 maintenance of public order.

                     The citizens residing or doing their trade in the said
G               area have stated the facts corroborating your above-stated
                criminal anti-social activities as a result of which you
                become obstructionist in the maintenance of public order.
                Such incidents .have been stated in detail. The copies of the
                statements thereof are given to you herewith".

H    Reference was made to a .previous order of detention of July 12, 1987,
,
              AHMEDHUSSAIN v. COMMR. OF POLICE [MISRA, J.J                181

    which was set aside by the High Court on 3.12.1987 and to the fact that
                                                                                 A
    notwithstanding the previous detention, the petitioner continued to
    carry on his criminal and anti-social activities affecting maintenance of
    public order.

          In the grounds it was further stated:
                                                                                 B
                "I had also considered to prevent your anti-social activities
                of selling wine by taking action u/s 93 of the Prohibition
                Act. But according to the provision of section 93, only
                surety for good conduct can be taken. I am fully satisfied
                that even if you give the surety for good conduct, you will
                not obey the same. Looking to your activities uptil now, I
                feel that you will not obey the same. So I do not think it       c
                possible to prevent your such anti-social activities immedia-
                tely by ·taking action against you under section 93 of the
                Prohibition Act.

                      I had considered to take action against you u/s 57(c) D
                of the Bombay Police Act for your externment. But under
                the provision of section 57(c), three convictions within a
                period of three years under the Prohibition Act are neces-..
                sary. In your case, of the cases which are registered against
                you under the Prohibition Act, one is pending in the Court
                and two cases are pending for police investigation. In your E
                case there is no such conviction; so it is not possible under
                the law to take action against you u/s 57(c) for externment.

                      I had also considered to take proceeding against you
                u/s 56B of the Bombay Police Ac.t for externment: but if
                the proceedings u/s 56B of the Bombay Police Act are             F
                taken against you, first of all show caus.e notice is reqqired
                to be given to you u/s 59(1) of the Bombay Police Act.
                Then such order caQ be passed only after giving you full
                opportunity to defend by examining your defence witnes-
                ses. Even if such order is passed against you, you can go in
                appeal against the externment u/s 60 of the said Act and the     G
                possibility of ·granting stay to you cannot be avoided. So a
                long time is taken in the proceedings of externment u/s 56B
                and during this period you may continue your anti-social
                activities and there are all chances that you become
                obstructionist in the maintenance of public order; so it is
                not possible to prevent your anti-social activities immedia-
       182        SUPREME COURT REPORTS               [1989] Supp. 1 S.C.R.

                 tely by taking action u/s 568 and I do not think proper to
A
                 take action against you u/s 568.

                       You and your companions of Dariyapur-Kalupur
                 are keeping dangerous weapons and making conspiracy to
                 beat the innocent persons and because of your activities an
B                atmosphere of fear and terror is spread in the said area and
                 people have fear of safety for themselves and damage to
                 their property. Because of your such activities you have
                 become obstructionist to the maintenance of public order
                 and because of your such activities the atmosphere of
                 public order has been disturbed. Thus considering all the
                 above facts, I am fully satisfied that you are a prohibition
C·               boot-legger and you are conducting anti-social activities of
                 selling indigenous and foreign liquor and you are creating
                 an atmosphere of fear and terror by beating innocent
                 persons in public and threaten them to kill by keeping
                 dangerous weapons in the above-stated area and you are
D                conducting activity of selling the wine in person or through
                 your persons. Action under the ordinary law has been
                 taken for preventing your such activities. At present you
                 are in jail under the Prohibition Act ....... There is every
                 possibility that you will be bailed out by giving surety by
                 the Court because this offence is bailable. It is quite possi-
E                ble that you may continue your criminal anti-social activi-
                 ties after release on bail from court ....... As it has
                 become necessary to prevent your anti-social activities to
                 prevent the same as there is no other alternative and as the
                 last alternate I pass the order to take you in detention
                 under the said Act."
F
             A list of documents relied upon by the detaining authority was
       appended to the grounds and the said list is Annexure-D to the
       petition.

        The detaining authority has filed his affidavit in support of the
G order of detention. In paragraph 7 of such affidavit the deponent has
  stated:

                  "With reference to paragraph 7 of the ·petition, I submit
                  that the averments made therein are absolutely wrong in
                  view of the fact that the petitioner has not ·been wrongly
J-1_              involved by me under the P.A.S.A. Act. It is only_ ~n
                  AHMED HUSSAIN v. COMMR. OF POLICE [MISRA, J .J               183

                    perusal of the rele'•ant record which has been supplied to        A
                    the petitioner and after considering the prognosis about the
                    futuristic activities of the petitioner, I was subjectively
-·                  satisfied that it is necessary to detain the petitioner preven-
                    tively under the provisions of the P.A.S.A. Act with a view
                    to preventing him from indulging in like activities and,
                    therefore, the impugned order was passed by me" .                 B

.J   '
         In paragraph 8( c) of the counter-affidavit the detaining authority has
         further stated:

                    "I further submit that so far as the petitioner's detention in
                    the year 1987 is concerned, it is true that the Hon'ble           C
                    Gujarat High Court had directed the authorities to release
                    the petitioner and the said facl has already been clearly
                    mentioned in the grounds of detention. I further submit
                    that since the Hon'ble Gujarat High Court had passed the
                    order, the order being judicial one, I have nothing to com-
                    ment on it. However, I submit that there is no nexus bet-         D
                    ween the order of the Hon'ble High Court in that petition
                    and the facts of the present case and, therefore, the judicial
                    pronouncement by the Hon'ble Gujarat High Court has no
                    application whatsoever to the facts of the present case.
                    Since the present order is passed on totally fresh grounds
                    which are sufficient enough to give subjective satisfaction       E
                    to me for the purpose of passing the order of detention
                     ........ I further submit that the fact that the petitioner
                    was earlier detained and the fact that the order of detention
                    was quashed by the Hon'ble Gujarat High Court was con-
                    sidered by me and that has also been mentioned in the
                    grounds of detention ........ "                                   F

              The Bombay Prohibition Act of 1949 is in force in the State of
         Gujarat and prohibition is in force in this State.

               We have extracted a substantial portion of the grounds of deten-
         tion communicated to the petitioner to show how helpless the G
         authorities feel in the matter of enforcing prohibition within the State.
         Obviously neither the Prohibition Act nor the other statutes referred
         to by the detaining authority could be called in aid to meet the require-
         ments of the situation. On his owu showing, afraid of the petitioner
         being released on bail and resorting to anti-social activities, and with a.
         view to ensuring his detention in jail the impugned order has been H
         made.
     184         SUPREME COURT REPORTS               (1989] Supp. 1 S.C.R.

A         The satisfaction of the detaining authority is not open to judicial
    review but as has been pointed out by several Constitution Bench
    decisions of this Court a citizen is entitled to protection within the
    meaning of Article 22(5) of the Constitution of the procedural
    guarantees envisaged by law. The Court frowns upon any deviation or
    infraction of the procedural requirements. That in fact is the only
B   guarantee to the citizen against the State's action of preventive
    detention.

         The fact that the detenu was in jail at the time the order of
    detention was made and the possibility of his release from jail being
    made a ground of detention was not approved of by this Court in
    Ramesh Yadav v. District Magistrate, Etah & Ors., (1985] 4 SCC 232
c   and Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., (1986]
    4 SCC 416. In Smt. Shashi Aggarwal v. State of U. P. & Ors., A.LR.
    1988 SC 596, this Court pointed out:

                "Every citizen in this country has the right to have recourse
D               to law. He has the right to move the court for bail when he
                is arrested under the ordinary law of the land. If the State
                thinks t.hat he does not deserve bail the State could oppose
                the grant of bail.. He cannot, however, be interdicted from
                moving the court for ball by clamping an order of deten-
                tion. The possibility of the court granting bail may not be
E               sufficient. Nor a bald statement that the person would
                repeat his criminal activities would be enough. There must
                also be credible informatioh or cogent reasons apparent on
                the record that the detenu, if enlarged on bail, would act
                prejudicially to the interest of public order."

F          We may now refer to two decisions of this Court under the pre-
    sent Act. In the case of Abdul Razak Abdul Wahib Sheikh v. Shri S.N.
    Sinha, Commissioner of Pp/ice, Ahmedabad & Anr., J.T. 1989 1 SC
    478 it has been held that the detaining authority must disclose in a case
    where the detenu is already in jail that there is cogent and relevant
    material constituting fresh facts to necessitate making of an order of
Q detention. In that case, as here, the detenu was in jail in connection
     with. a criminal case and the order of detention was served on him in
   ·jail. The detenu's mere complicity in earlier incidents was not con-
    sidered adequate and the detention under the Act was set aside. In the
    case of Ramesh v. State of Gujarat & Ors., J.T. 1989 3 SC 279, an order
   . of detention under the Act was under challenge. The Court found that
H . referring to incident which constituted the subject-matter of an earlier
          AHMEDHUSSAIN '· COMMR. OF POLICE [MISRA, J.l                 185

order of detention vitiated the impugned order.
                                                                             A
      Apart from these, in the instant case, the material disclosed is
quite vague with reference to the persons affected or victimised as also
the time and place of such victimisation. This Court has on several
o~casions indicated that there is a wide gap between law and. order and
public order. The. criminal offence may relate to the filed of law and       B
order but such an offence would not necessarily give rise to a situation
of public order. Depending upon peculiar situations an act which may
otherwise have been overlooked as innocuous might constitute a pro-
blem of public order. Selling of liquor by the petitioner would certainly
amount to an offence under the Prohibition Act but without something
more would not give rise to problem of public order. Similarly commis-
sion of any other criminal offence-even assault or threat of assatllt-       c
would not bring the matter within the ambit of public order.

      Disclosure of adequate facts to enable a full and adequate rep-
resentation to the Preventive Detention Board is one of the positive
guarantees within the scope of Article 22(5) of the Constitution. In         D
A. K. Roy's case, [ 1982) 1 SCC 272 a Constitution Bench of ihis Court
indicated that fullest disclosure of material should be made .to enable
the representation to be effective. In the present case the grounds
which we have extracted show that the allegations are more or less
vague and have the effect of making it difficult for the petitioner to
make an adequate representation.                                             E

       Four witnesses had deposed against the petitioner. Their state-
ments were supplied to the petitioner without disclosing their names.
It is the stand of the respondent that if the names were disclosed the
witnesses were likely· to be bodily injured or even eliminated. There
may be certain situations where the disclosure has to be with-held but       F
in view of the infirmities already indicated it is not necessary for us to
examine whether in the facts of the present case such withholding
would not by itself vitiate the order of detention.

      We are satisfied that the impugned order cannot be sustained.
Accordingly, we quash the order and direct that the petitioner be set at     G
liberty forthwith.

     It is perhaps necessary to indicate that the provisions of the
Prohibition Act of 1949 or the J:!ombay Police Act should be suitably
amended to meet the requ.irements of society. Even if the provisions
under those Acts are made stringent the person proceeded against has _H
    186              SUPREME COURT REPORTS         (1989] Supp. 1 S.C.R.

A the benefit of a trial or a regular hearing and pursuing an appeal
    against adverse orders, but in a case of preventive detention trial is·
    avoided and liberty of a citizen is taken away without providing a right
    to defend himself. The grounds provided by the detaining authority
    have clearly exhibited a sense of helplessness to meet the requirement
    of the situation; that, however, is a matter for the Legislature and the
B Administration to consider but the Court has to zealously guard
 · .enchroachments on the liberty of the citizen.

    R.S.S.                                                Petition allowed.




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