Paresh Ramanlal AmIn Vs. State of Gujarat and ors. - Court Judgment

Excerpt:
- - where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly -(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -(i) vague (ii) non-existent (iii) not relevant (iv) not connected or not proximately connected with such person, with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the government or the officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the government or the officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. act reads as under :6. where a person has been detained in pursuance of an order of detention under section 3 which has been made on two more grounds, such order of detention shall be deemed to have been made separately on each ground and accordingly -(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -(i) vague (ii) non-existent (iii) not relevant (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the government or the officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the government or the officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds. this is precisely what the first part (the main part) of section 5-a seeks to do.b.c. patel, j.1. this matter has been placed before this court in view of the order passed by the hon'ble the chief justice as a division bench hearing this matter, on 22-6-1994, expressed an opinion that it is desirable that the important questions raised are decided by a larger bench. the questions which are referred are as under:(1) what will be the scope and sphere of operation of article 22(5) of the constitution of india when section 6 of the p.a.s.a. act is applicable?(2) when one ground of detention is not existent as it is vague whether it would affect the right to make representation under article 22(5) of the constitution of india?2. the detenue was detained under the provisions of the gujarat prevention of anti-social activities act, 1985 (for short 'p.a.s.a. act') by an order made by district magistrate, vide annexure 'a' on 9-6-1993. grounds of detention were served vide annexure 'c dated 9-6-1993. against the said detention order, the aforesaid petition has been filed by a friend of the petitioner.3. the questions referred to hereinabove, in our opinion, are concluded by the decision of the apex court in the case of attorney general for india v. amratlal prajivandas reported in : 1995crilj426 .4. the apex court considered the language of section 5-a of conservation of foreign exchange and prevention of smuggling activities act, 1974 (for short 'c.o.f.e.p.o.s.a. act') and held that there are as many orders of detention as there are grounds. thus, on each ground there is a separate order. section 5-a of c.o.f.e.p.o.s.a. act reads as under:5-a. where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly -(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -(i) vague(ii) non-existent(iii) not relevant(iv) not connected or not proximately connected with such person, with such person, or(v) invalid for any other reason whatsoever,and it is not, therefore, possible to hold that the government or the officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention;(b) the government or the officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.section 6 of the p.a.s.a. act reads as under :-6. where a person has been detained in pursuance of an order of detention under section 3 which has been made on two more grounds, such order of detention shall be deemed to have been made separately on each ground and accordingly -(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -(i) vague(ii) non-existent(iii) not relevant(iv) not connected or not proximately connected with such person,or(v) invalid for any other reason whatsoever,and it is not, therefore, possible to hold that the government or the officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention;(b) the government or the officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.4.1 reading the language, it is clear that section 6 of the p.a.s.a. act is pan materia to section 5-a of the c.o.f.e.p.o.s.a. act.5. after considering various judgments of the apex court and the decision of other courts, in paragraph 48 the apex court has held as under :-48. now, take a case, where three orders of detention are made against the same person under c.o.f.e.p.o.s.a. each of the orders is based upon only one ground which is applied to the detenu. it is found that the ground of detention support of two of such orders is either vague or irrelevant. but the ground in support of the third order is relevant, definite and proximate. in such a case, while the first two orders would be quashed, the third order would stand. this is precisely what the first part (the main part) of section 5-a seeks to do. where the order of detention is based on more than one ground, the section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. the result is the same as the one in the illustration given by us hereinabove. the second part of it is merely clarificatory and explanatory, which is evident from the fact that it begins with the word 'accordingly'- apart from the fact that it is joined to the first part by the word 'and'. in such a situation, we are unable to see how can the section be characterised as inconsistent with article 22(5). had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of article 22(5) as interpreted by this court - this was indeed the situation in k. yadigiri reddy v. the commissioner of police ilr 1972 ap 1025 as we shall presently indicate, it is difficult to conceive any inconsistency or conflict between article 22(5) and the first the main part of section 5-a. the parliament is competent to create a legal fiction and it did so in this case. article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. no decision saying so has been brought to our notice. be that as it may, we do not see why the parliament is not competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are ground. if this creation of a legal fiction is competent, then no question of any inconsistency between the section and article 22(5) can arise.6. so far as the present petition is concerned, the detenu was detained under the provisions contained in the p.a.s.a. act. section 6 of p.a.s.a. act is almost identical to section 5-a of the c.o.f.e.p.o.s.a. act which was under consideration by the apex court in the aforesaid case.7. in view of this, we find that section 6 of the p.a.s.a. act cannot be held to be inconsistent with the provisions contained in article 22(5) of the constitution of india and applicability of section 6 of p.a.s.a. act does not impinge upon the scope and sphere of operation of article 22(5) of the constitution of india. the first question is answered accordingly.7.1 so far as the second question is concerned, we hold that one ground of detention which is non-existent as it is vague, would not affect the right to make representation under article 22(5) of the constitution of india. the second question is answered accordingly.7.2. as we have answered the questions, ordinarily, the matter would be required to be sent back to the appropriate bench. however, in the present case, the petition has become infructuous. we, therefore, dispose of this petition as having become infructuous. rule is discharged.