The Hon’ble High Court of Gujarat passed a set of guidelines for the State Government and Detaining Authorities for initiating and dealing with proceedings under the Laws of Preventive Detention. Furthermore, the High Court cautioned that the matters relating to preventive detention should not be decided in a “slipshod manner”.
The judgement dated 07.10.2020 was pronounced in an appeal, filed under Clause 15 of the Letters Patent Act at the instance of an unsuccessful writ application, directed against the judgment and order passed by the learned Single Judge of the High Court dated 16.09.2020. The said writ application was rejected affirming the order of preventive detention dated 12.05.2020 passed against the Appellant 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 per Section 2(c) of the Act.
The Applicant (detenue) was detained on account of four criminal cases for threatening the complainant and witnesses at a public place with a lethal weapon. The present appeal was thus filed against the said detention order.
Stating the fact that the Detaining Authority was unaware of the acquittal of the Appellant in one of the four cases, the Division bench comprising of Chief Justice Vikram Nath and Justice J. B. Pardiwala ordered to quash the order of detention on the ground of non-application of mind.
The Division bench then took notice of the detaining authorities claiming privilege under Section 9(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as “PASA”) for not disclosing the identity of the persons whose statements came to be recorded in-camera.
Referring to a series of matters decided by the Apex Court as well as various High Courts, the division bench rejected the said claim on the following grounds:
- The Detaining Authority did not take any individual steps for considering the general background, character, antecedents, criminal tendency etc. while recording subjective satisfaction, but relied solely on the material produced by the sponsoring authority.
- No record of grounds and reasons which weighed with the detaining authority for not disclosing the identity of the anonymous witnesses were made, nor any affidavit-in-reply was filed in this regard.
- Except bald allegation about the genuineness of fear and consequent need for withholding the identity of witnesses, there is no material to lend support the exercise of powers under Section 9(2) of the PASA Act.
The Division bench further clarified that Section 6 of PASA Act also couldn’t be applied in the said matter as the said Section 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.
After a careful examination of the present matter, the Hon’ble Division bench directed the Detaining Authorities to not decide matters relating to the preventive detention in a slip-shod manner, and to look into the order of detention including the grounds of detention and the other materials on record with seriousness to ensure that the personal liberty of detenue has been curtailed strictly following the procedure prescribed by law.
Several guidelines were also provided by the Hon’ble bench for the State Government and Detention Authorities to keep in mind while initiating preventive detention.
The present appeal was thus allowed and the impugned order passed by the learned Single Judge was thereby set aside.