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Popat Mohan Vaghari v. State Of Gujarat & Ors.
Factual and Procedural Background
The petitioner was detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA) by an order dated 4 April 1988 passed by the Commissioner of Police, Ahmedabad. The petitioner was served with the grounds of detention and other relevant papers on that date.
The grounds of detention alleged that the petitioner was engaged in large-scale storage and sale of illicit country liquor in the Dariapur and Mehdikuva localities of Ahmedabad, selling either directly or through his servants. Six criminal cases under the Bombay Prohibitions Act were said to exist against him, with seized quantities in various cases ranging from 375 ml to 80 litres; one case resulted in a conviction for being drunk, while other cases were pending or under investigation. It was also alleged that the petitioner and his men threatened and at times beat people, thereby endangering public life and property and adversely affecting maintenance of public order.
Statements of five witnesses were recorded; their names and addresses were not disclosed because the detaining authority considered disclosure contrary to the public interest. The petitioner challenged the detention in this High Court. After hearing arguments and reviewing the materials (including an affidavit from a Police Sub-Inspector about communication of grounds and endorsements), the Court rejected the petition and discharged the rule.
Legal Issues Presented
- Whether the material before the detaining authority justified preventive detention on the ground that the petitioner's activities adversely affected or were likely to affect the maintenance of public order under PASA.
- Whether the grounds of detention and supporting material were properly communicated to the petitioner in compliance with Article 22(5) of the Constitution and Section 9 of PASA.
- Whether the witness statements relied upon by the detaining authority were sufficiently specific and reliable (including whether they required verification by a superior police officer).
- Whether less drastic remedies were available and, if so, whether the detaining authority failed to consider them (i.e., whether the detaining authority applied its mind to alternatives to detention).
Arguments of the Parties
Petitioner's Arguments
- The grounds of detention and material relied upon did not disclose any question of "public order" — at most they showed a question of law and order, not sufficient for preventive detention under PASA.
- The petitioner was illiterate and the grounds and materials were not read over to him, so there was no proper communication of grounds as required by Article 22(5) and Section 9 of PASA.
- The statements of witnesses were too vague to support the detaining authority’s satisfaction that public order was affected or likely to be affected.
- Less drastic remedies could and should have been adopted; detention was the most severe step and not justified.
- The witness statements were not verified by any superior police officer, vitiating the detaining authority’s satisfaction.
Respondent / Detaining Authority's Position (as recorded in the opinion)
- The term "public order" under PASA must be given an enlarged and extended meaning (reference to explanation to section 3(4) of PASA and to Rajendrakumar v. State of Gujarat), and the facts (large-scale storage and sale; public consumption; quantities seized) justified preventive detention.
- An affidavit by P.S.I. V.D. Vanar stated that the detention order and documents were read over and explained to the petitioner in Gujarati, and that the petitioner’s thumb impression was obtained on office copies; the file contained an endorsement to that effect.
- The witness statements were not so vague as to be unusable and the Court should not sit in appeal over the detaining authority’s subjective satisfaction; the Court’s role is limited to seeing whether the detaining authority applied its mind and whether alternatives were considered.
- Although there was no strict formal compliance with prior observations of the Bench (Special Criminal Application No. 647 of 1987), the statements were recorded by a Police Inspector and the record was verified by the Police Superintendent before forwarding to the Commissioner; the grounds of detention noted that verification had occurred.
- The detaining authority had considered lesser remedies and concluded they were insufficient; that consideration ends the Court’s inquiry on that point.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rajendrakumar v. State of Gujarat, 1988 (1) GLH 140 : 1988 (1) GLR 283 | Recognition that under PASA an enlarged and extended meaning of "public order" is appropriate (supporting broader view of what adversely affects public order). | The Court relied on this authority and the explanation to section 3(4) of PASA to conclude that the petitioner's activities (large-scale storage/sale of country liquor, public consumption, disorderly conduct) could adversely affect public order and therefore justify detention. |
| Special Criminal Application No. 647 of 1987 (decision dated 23-11-1987) — observations by this Bench | Observations that statements of witnesses should be verified by some superior officer (guideline suggested by this Court in that decision). | The Court noted these observations had been circulated and considered as guidelines. In the present case, although strict compliance was not found, the file showed statements recorded by a Police Inspector and verified by the Police Superintendent before being forwarded to the detaining authority; the grounds of detention also recorded that verification. |
Court's Reasoning and Analysis
The Court undertook a multi-part analysis strictly tied to the materials and submissions before it:
- Meaning of "public order": The Court accepted the detaining authority's interpretation that PASA and the explanation to section 3(4) require an enlarged meaning of "public order." It held that large-scale storage and sale of country liquor, with repeated seizures of significant quantities, and public consumption leading to disorderly conduct, can create a danger to public health and a feeling of insecurity among the public (or sections thereof), thereby adversely affecting or likely to affect public order.
- Evidence and common-sense inferences: The Court reasoned that the consumption of country liquor by a large number of people is itself a danger to public health and that such consequences can be inferred by experience of life without need for academic authority. The operation of liquor dens in public localities and observable inebriation and disorderly behaviour supported the detaining authority’s satisfaction.
- Communication of grounds: Faced with the petitioner’s claim of non-communication, the Court examined an affidavit by P.S.I. V.D. Vanar and the file. It found an endorsement (bearing the petitioner’s thumb impression) indicating that the detention order and grounds had been read over and explained to the petitioner in Gujarati. On that basis, the Court rejected the contention of non-communication.
- Sufficiency and reliability of witness statements: The Court observed that it is not sitting in appeal over the detaining authority’s satisfaction to reassess the proofs. It found that the material before the detaining authority was sufficient for it to form the required subjective satisfaction that preventive detention was necessary to prevent prejudice to public order.
- Consideration of less drastic remedies: The Court emphasised its limited role — it must assess whether the detaining authority considered less drastic alternatives, not substitute its own view about which measure was preferable. The grounds of detention and record showed the detaining authority had considered alternative remedies and concluded they were insufficient; therefore the Court would not interfere on that basis.
-
Verification of statements by superior officer: While noting that strict compliance with the earlier Bench observations was not present, the Court found that the statements were recorded by a Police Inspector and the record was verified by the Police Superintendent
Factual and Procedural Background
The petitioner was detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA) by an order dated 4 April 1988 passed by the Commissioner of Police, Ahmedabad. The petitioner was served with the grounds of detention and other relevant papers on that date.
The grounds of detention alleged that the petitioner was engaged in large-scale storage and sale of illicit country liquor in the Dariapur and Mehdikuva localities of Ahmedabad, selling either directly or through his servants. Six criminal cases under the Bombay Prohibitions Act were said to exist against him, with seized quantities in various cases ranging from 375 ml to 80 litres; one case resulted in a conviction for being drunk, while other cases were pending or under investigation. It was also alleged that the petitioner and his men threatened and at times beat people, thereby endangering public life and property and adversely affecting maintenance of public order.
Statements of five witnesses were recorded; their names and addresses were not disclosed because the detaining authority considered disclosure contrary to the public interest. The petitioner challenged the detention in this High Court. After hearing arguments and reviewing the materials (including an affidavit from a Police Sub-Inspector about communication of grounds and endorsements), the Court rejected the petition and discharged the rule.
Legal Issues Presented
- Whether the material before the detaining authority justified preventive detention on the ground that the petitioner's activities adversely affected or were likely to affect the maintenance of public order under PASA.
- Whether the grounds of detention and supporting material were properly communicated to the petitioner in compliance with Article 22(5) of the Constitution and Section 9 of PASA.
- Whether the witness statements relied upon by the detaining authority were sufficiently specific and reliable (including whether they required verification by a superior police officer).
- Whether less drastic remedies were available and, if so, whether the detaining authority failed to consider them (i.e., whether the detaining authority applied its mind to alternatives to detention).
Arguments of the Parties
Petitioner's Arguments
- The grounds of detention and material relied upon did not disclose any question of "public order" — at most they showed a question of law and order, not sufficient for preventive detention under PASA.
- The petitioner was illiterate and the grounds and materials were not read over to him, so there was no proper communication of grounds as required by Article 22(5) and Section 9 of PASA.
- The statements of witnesses were too vague to support the detaining authority’s satisfaction that public order was affected or likely to be affected.
- Less drastic remedies could and should have been adopted; detention was the most severe step and not justified.
- The witness statements were not verified by any superior police officer, vitiating the detaining authority’s satisfaction.
Respondent / Detaining Authority's Position (as recorded in the opinion)
- The term "public order" under PASA must be given an enlarged and extended meaning (reference to explanation to section 3(4) of PASA and to Rajendrakumar v. State of Gujarat), and the facts (large-scale storage and sale; public consumption; quantities seized) justified preventive detention.
- An affidavit by P.S.I. V.D. Vanar stated that the detention order and documents were read over and explained to the petitioner in Gujarati, and that the petitioner’s thumb impression was obtained on office copies; the file contained an endorsement to that effect.
- The witness statements were not so vague as to be unusable and the Court should not sit in appeal over the detaining authority’s subjective satisfaction; the Court’s role is limited to seeing whether the detaining authority applied its mind and whether alternatives were considered.
- Although there was no strict formal compliance with prior observations of the Bench (Special Criminal Application No. 647 of 1987), the statements were recorded by a Police Inspector and the record was verified by the Police Superintendent before forwarding to the Commissioner; the grounds of detention also recorded that verification had occurred.
- The detaining authority had considered lesser remedies and concluded they were insufficient; that consideration ends the Court’s inquiry on that point.
Table of Precedents Cited
Precedent Rule or Principle Cited For Application by the Court Rajendrakumar v. State of Gujarat, 1988 (1) GLH 140 : 1988 (1) GLR 283 Recognition that under PASA an enlarged and extended meaning of "public order" is appropriate (supporting broader view of what adversely affects public order). The Court relied on this authority and the explanation to section 3(4) of PASA to conclude that the petitioner's activities (large-scale storage/sale of country liquor, public consumption, disorderly conduct) could adversely affect public order and therefore justify detention. Special Criminal Application No. 647 of 1987 (decision dated 23-11-1987) — observations by this Bench Observations that statements of witnesses should be verified by some superior officer (guideline suggested by this Court in that decision). The Court noted these observations had been circulated and considered as guidelines. In the present case, although strict compliance was not found, the file showed statements recorded by a Police Inspector and verified by the Police Superintendent before being forwarded to the detaining authority; the grounds of detention also recorded that verification. Court's Reasoning and Analysis
The Court undertook a focused analysis based on the material and submissions before it and proceeded as follows:
- The Court accepted the detaining authority's construction of "public order" under PASA, observing that the explanation to section 3(4) treats activities causing harm, danger, alarm, a feeling of insecurity among the public or any section thereof, or a grave or widespread danger to life, property or public health, as adversely affecting public order. Given the facts of large-scale storage and sale and repeated seizures, the Court concluded such activities could fall within that extended concept.
- The Court relied on commonsense inferences from the factual material: large-scale sale and public consumption of country liquor may endanger public health and cause inebriation and disorderly conduct on public roads, which in turn can create danger, alarm or insecurity in the locality (noting particular vulnerability of women and poorer localities).
- On the communication of grounds, the Court examined the affidavit of P.S.I. V.D. Vanar and the detention file and found an endorsement (with the petitioner’s thumb impression) indicating the grounds were read over and explained to the petitioner in Gujarati. Consequently, the Court found the communication requirement to have been met.
- Regarding the adequacy and specificity of witness statements, the Court emphasised its limited review function: it would not substitute its view for the detaining authority’s subjective satisfaction. The Court held that the material before the detaining authority was sufficient for it to form the satisfaction necessary for detention.
- On the availability of less drastic measures, the Court reiterated that its role is to determine whether the detaining authority considered lesser remedies, not to decide which remedy was preferable. The grounds and record showed the detaining authority had considered alternatives and rejected them as insufficient, ending that line of challenge.
- On verification of witness statements, the Court noted that while strict compliance with earlier Bench observations was not present, the file showed statements recorded by the Police Inspector and verified by the Police Superintendent prior to being forwarded to the Commissioner. The grounds of detention explicitly mentioned verification. In view of these facts, the Court found no mechanical reliance or non-application of mind by the detaining authority.
Holding and Implications
Holding: The petition is rejected and the rule is discharged.
Implications:
- The direct effect of the decision is that the detention order dated 4 April 1988 by the Commissioner of Police, Ahmedabad, is upheld and the petitioner’s challenge to that detention is dismissed.
- The Court's reasoning rests on application of the extended meaning of "public order" under PASA (as guided by prior authority) and on factual findings in the detention record (quantity of liquor, public sale and consumption, witness statements, communication of grounds, verification by superior officer, and consideration of lesser remedies).
- The opinion does not purport to lay down any new legal principle beyond applying existing statutory provisions and prior decisions; the decision resolves the matter on the facts and the established principles referred to in the opinion.
1. The petitioner has been detained under the provisions of Gujarat Prevention of Anti-Social Activities Act, 1985 (for short 'PASA') pursuant to the order dated April 4, 1988 passed by the Commissioner of Police, Ahmedabad. On the same date i.e. on 4-4-1988 he has been served with the grounds of detention and other relevant papers.
2. It is alleged that the petitioner-detenu was dealing in illicit country liquor by storing the same and selling the same to the people either directly or through his servants. That he was carrying on this activity in Dariapur and Mehdikuva localities of the city of Ahmedabad. That there were six criminal cases against him under the provisions of Bombay Prohibitions Act. In one case the quantity of country liquor seized was 375 m.l. In another case it was 10 litres and in three other cases the country liquor seized was 80 litres, 9 litres and 10 litres respectively. In one case he was found drunk and he was convicted for the said offence. Other cases are either pending before the Court or they are under investigation. It was also alleged that for carrying on the aforesaid activities of storing and selling the illicit liquor, he was threatening the people and was at times beating them in public. On account of such activities in the opinion of the detaining authority, the public life and property was endangered and his activities adversely affected the maintenance of the public order.
3. Statements of five persons were recorded and the copies thereof were supplied to the petitioner. Since the witnesses were afraid of giving their names and addresses and since the detaining authority was satisfied that it was not in the public interest to disclose the names and addresses of the witnesses, the same have not been disclosed. As per the statements of the witnesses, each of the witness has referred to some incident in which the detenu and his men were involved in threatening the people or beating the people and on account of which the ordinary life of the people in that locality was disturbed.
4. Learned Counsel for the petitioner submitted that the grounds mentioned in the order of detention and the material relied upon by the detaining authority do not disclose that there was any question of maintenance of public order. At the most the material relied upon discloses that some question of law and order had arisen. Therefore, it is submitted that the detention order is not justified. This contention cannot be accepted for the simple reason that the 'public order' has been given extended meaning under the provisions of PASA. On reading explanation to section 3(4) of pasa, it becomes abundantly clear that whenever there is likelihood of widespread danger to the life and property of the public, it can be said that public order was likely to be adversely affected. The quantity of country liquor seized every time when the cases were registered against the detenu indicates that the storage and sale of country liquor by the detenu and his men was on large scale. The consumption of country liquor by a large number of people itself is a danger to the public health. This is a matter of commonsense and such reasonable inference has got to be drawn by having recourse to experience of life. For this purpose no authority or erudite research is required. To call for some research or for some authority on such obvious matters would mean insult to one's commonsense and experience of life. As far as the cases of detention under PASA is concerned, enlarged and extended meaning of "public order" is required to be taken into consideration. This view was taken by this High Court in the case of Rajendrakumar v. State of Gujarat 1988 (1) GLH 140 : 1988 (1) GLR 283. This very case was carried to the Supreme Court and the Supreme Court has also confirmed the order of detention .
5. The material relied upon by the detaining authority also discloses that liquor is sold in public openly. Certain people come to take liquor at the dens which are being run by the detenu in public. These people get inobriated on public road and in the state of intoxication behave in disorderly manner. The activity of storing liquor on large scale and selling the same through liquor dens in public along would be sufficient to adversely affect public order. One has to wink his eyes just for a while and imagine his own mother, wife, sister o daughter passing through public street where liquor is being sold ii public and consumed openly. After imagining such a situation, question has to be put will there not be danger or alarm or feeling of insecurity among the general public or any section thereof on account of such activity? Law cannot be interpreted and implemented by shutting one own eyes to the hard realities of life which exist beyond the air-conditioned chambers of bungalows and offices. If rule of law has to succeed it has to run closer to the rule of life. It has got to be nearer to life and no away from life. In the localities inhabited by downtrodden people such activities of storing and selling liquor in public are normally being carried on. By sale of liquor in public in such localities, normal life of people is disturbed. For people living in such localities, it may be easier to be oblivious and indifferent to the hard realities of life existing in localities inhabited by poor and downtrodden people because their health and comforts are seldom affected as a result of such activities. But in view of the aforesaid decisions, of this High Court and that of the Supreme Court in the case of Rajendrakumar (supra) and particularly in view of the explanation to section 3(4) of pasa it is not permissible to take such a detached and disintegrated view of the matter. Explanation to Section 3(4) provides that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in the sub-section directly of indirectly, is causing or is likely to cause any harm, danger or alarm feeling of insecurity among the general public or any section thereof or a grave or wide spread danger to life, property or public health. Once the meaning public order as defined in explanation to Section 3(4) is kept in view it is difficult to hold that activity by which a person sells liquor in public streets and allows and/or entices other people to drink the same in public place would not adversely affect public order. Ever one liquor den insufficient to create a feeling of insecurity in the minds of general public of the locality wherein such liquor den is being operated. At any rate a section of the general public i.e. entire women folk, will certainly feel insecure if such liquor dens are being operated in public in the locality concerned. Therefore contention that there was no adverse effect or no likelihood of adverse effect on the maintenance of public order cannot be accepted.
6. Learned Counsel for the petitioner submitted that the petitioner-detenu is an illiterate person and grounds of detention and the material supplied to him was not read over to him. Therefore, it is contended that there is no communication of grounds of detention as required under the provisions of Article 22(5) of the Constitution and Section 9 of PASA, Learned Counsel for the petitioner has shown a copy of the order of detention served upon the detenu and he has also shown other papers served upon the detenu. It is true that on these papers there is no endorsement to the effect that the contents of the detention order and documents were read over to the detenu and he has explained the same. However, P.S.I. Shri V.D. Vanar, has filed an affidavit wherein it is stated that the order of detention and other documents containing the grounds of detention were read over to the detenu and explained to him in Gujarati. He has stated in his affidavit that the committal order of the detenu was served upon him in Dariapur Police Station while other papers of grounds of detention were served in Sabarmati Central Prison and that he has explained the same to the detenu in Gujarati. He has further stated that in token of having read over the documents and having explained the same, the thumb impression of the detenu has been obtained on the office copy of the relevant documents and the same is kept in the file. We have seen the file. There is such endorsement. Thus the statements made in the affidavit are correct. On the Office copy of the aforesaid document there is endorsement to the effect that the documents have been read over and explained to the detenu. This bears thumb impression of the detenu. Therefore, the contention that the order of detention and committal order have not been communicated to the detenu cannot be accepted.
7. earned Counsel for the petitioner submitted that the statements of witnesses relied upon by the detaining authority are too vague to be believed and from these statements it can never be inferred that the maintenance of public order would be adversely affected. This argument cannot be accepted. This Court is not sitting in appeal over the satisfaction arrived at by the detaining authority to assess the material placed before him and arrive at the necessary satisfaction before passing the order of detention. By no stretch of reasoning it can be said that the material placed before the detaining authority was not sufficient to arrive at the satisfaction that the preventive detention of the detenu was necessary for the purpose of preventing him from acting in the manner prejudicial to the maintenance of public order.
8. earned Counsel for the petitioner submitted that less drastic remedies could have been taken and it was not necessary to adopt the severe most action of depriving the liberty of the petitioner without trial by issuing the impugned order of detention. On this point also the law is very well settled. All that is required to be scrutinised by the Court is as to whether the aspect of lesser remedy was present in the mind of detaining authority or not. It is not for the Court to consider as to whether the detaining authority could have resorted to less drastic measures and therefore it should have adopted one or the other course. Which course should be adopted is for the detaining authority to decide. It is not within the sphere of the judicial review to inquire and come to its own conclusion. The moment it is shown either from the grounds of detention or from the affidavit-in-reply filed on behalf of the detaining authority that the aspect regarding less drastic remedy to be adopted was present in the mind of the detaining authority before arriving at the necessary satisfaction to detain the detenu, the scrutiny of the Court comes to an end. Once it is shown that the detaining authority was very much alive to this aspect, the contention that the detaining authority could have resorted to less drastic remedy and therefore it should have adopted one such measure is not within the scope of the scrutiny by the Court. If the Court takes up such inquiry, we are afraid we would transgress the limits of the jurisdiction of Article 226 of the Constitution and convert the petition into an appeal under Article 226 of the Constitution against the order of detention. It is not the function of the Court to substitute the test of subjective satisfaction to one that of objective satisfaction.
In above view of the matter all that is required to be seen by the Court is as to whether the aspect of less drastic remedy was present in the minds of the detaining authority. On reading the grounds of detention it becomes obvious that the detaining authority was very much alive to the remedies available under ordinary law of the land. The detaining authority has considered the various alternative measures available and has come to the conclusion that these remedies were not sufficient to prevent the petitioner-detenu from acting in the manner prejudicial to the maintenance of public order. Therefore this contention also fails.
9. Learned Counsel for the petitioner submitted that the statement of the witnesses relied upon by the detaining authority have not been verified by any superior police officer and therefore the satisfaction arrived at by the detaining authority on the basis of such material stands vitiated. It may be noted that there is no provision in the PASA which makes it obligatory upon the detaining authority to see that the statements recorded by the Police Sub-Inspector or by the Police Inspector be verified by any superior officer. However, on account of certain observations made by this very Bench in Special Criminal Application No. 647 of 1987 decided on 23-11-1987, it is submitted that the statements of the witnesses should have been verified by some superior officer. Learned Counsel for the respondents states that the observations made by this Court in the aforesaid decision have been circulated to all the police officers concerned and to the detaining authority. He further states that the aforesaid observations have been considered as guidelines before exercising the powers of detention.
10. In this case there is no strict compliance with the observations made by us. But on going through the file, it does appear that the statements have been recorded by the Police Inspector and the entire record has been verified by the superior police officer viz. Police Superintendent who is superior to P.I. and only thereafter the papers have been forwarded to the detaining authority i.e. to the Police Commissioner. It may also be noted that in the grounds of detention the detaining authority has mentioned that the statements have been verified. In above view of the matter, it cannot be said that the detaining authority has mechanically relied upon the material placed before it and therefore the order of detention suffers from the vice of non-application of mind. Though this contention is not raised in the petition, we have permitted the learned Counsel for the petitioner to raise the same. After going through the file of the detaining authority, we are satisfied that the grounds raised with regard to non-application of mind by the detaining authority has no substance.
No other contention is raised. There is no substance in any of the contentions raised by the learned Counsel for the petitioner. Hence the petition is rejected. Rule discharged.
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