Vishal Kanhaiyalal Shrimali v. Union Territory of Daman and Diu

1 Since all the aforesaid petitions are to some extent interrelated, they are being disposed of by a common judgment and order. 2 WRIT PETITION NO. 560/2023 2.[1] By this petition preferred under Article 226 of the Constitution of India, the petitioner, an advocate, seeks quashing and setting-aside of the impugned order dated 6th December 2022 passed by the District Magistrate, Dadra and Nagar Haveli under Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter for the sake of brevity referred to as ‘PASA Act’). 2.[2] The principal ground on which quashing of the impugned order invoking PASA Act is sought, is non-handing of documents, on which reliance was placed by the Detaining Authority, as reflected in the impugned order. Apart from the SQ Pathan 4/37 said ground, several other grounds were also raised in the petition, however, since the petition ought to succeed on this very ground, it is not necessary to delve into the other grounds raised in the petition. 2.[3] Learned Special PP appearing for the respondent Nos. 1, 2 and 4 does not dispute the fact, that no documents were placed before the Detaining Authority, on which reliance was placed and hence, the question of handing the said documents to the petitioner does not arise. 2.[4] Perused the papers. The petitioner is a practicing advocate having completed his law from the University of Mumbai. He is enrolled with the Bar Council of Maharashtra and Goa and it is stated that he has been practicing for more than nine years in the field of Civil, Criminal and Revenue related matters. It appears that the petitioner was also appointed as an Assistant Public Prosecutor for the period 21st August 2017 to 20th SQ Pathan 5/37 May 2020 in the Court of the learned Chief Judicial Magistrate and Judicial Magistrate First Class of Dadra and Nagar Haveli and was a Public Prosecutor for the CGST and the Central Excise Department of the Union Territory of Dadra and Nagar Haveli in November 2018. According to the petitioner, he is a social activist, who has fought for the right of citizens and environment by filing several representations before various authorities from time to time. 2.[5] According to the learned counsel for the petitioner, the petitioner had taken cudgels with the marble lobby by exposing their illegalities i.e. how marble was polished and the waste material was lying on fertile land close to the manufacturing units; how fertile lands were becoming barren due to the flourishing business of the marble lobby and its agents supported by the politicians; and how it was difficult for ordinary citizens to raise their voices and concerns against these illegal and anti-social activities. SQ Pathan 6/37 2.[6] According to the petitioner, in one such case, the residue and waste material (of marbles) were dumped near the land of Prithvisinh Rathod and Ashoksinh Rathod (detenues in Writ Petition No. 706/2013 and 707/2013). It is stated that Prithvisinh Rathod (detenue in Writ Petition No. 706/2013) approached the petitioner, pursuant to which, the petitioner advised Prithvisinh Rathod and his father-Ashoksinh to file proceeding under Section 133 of the Criminal Procedure Code, for removal of nuisance. Pursuant thereto, an application was filed on 26th April 2022 under Section 133 before the Sub- Divisional Magistrate at Silvassa. As no steps were taken by the Sub-Divisional Magistrate, Silvassa, the petitioner on behalf of his client Prithvisinh Rathod (detenue in Writ Petition No.706/2023) took all necessary steps i.e. submitted a request to inquire about the progress vide application dated 31st May 2022, 8th July 2022 and 20th October 2022, to the Resident Deputy Collector. However, it is the case of the petitioner, that the petitioner did not receive any reply. According to the petitioner, his client SQ Pathan 7/37 Prithvisinh Rathod (detenue in Writ Petition No.706/2023) through the petitioner was sending representations to the Chairman, Pollution Control Committee, Union Territory of Dadra and Nagar Haveli and Daman and Diu vide representation dated 31st January 2022 and reminder dated 28th March 2022, bringing to their notice violations of the Rules relating to air and water pollution caused by the marble lobby. It appears that the petitioner, on behalf of his client Prithvisinh Rathod (detenue in Writ Petition No.706/2023), also addressed a letter dated 23rd June 2022 to the Regional Officer, Gujarat Pollution Control Board, Umbergaon, Gujarat and had also sent a representation to the Collector of Valsad District on 23rd June 2022 and a reminder on 8th August 2022. It is the case of the petitioner that despite sending several representations and complaints, none of the authorities took any action or replied to the said representations. Several letters are stated to have been sent to the said authorities, however, to no avail. It is the petitioner’s case that at the instance of the marble lobby, several false FIRs came to be registered SQ Pathan 8/37 against him by the police to the extent that even the petitioner’s computer came to be seized. According to the petitioner, out of the eight FIRs, which were registered against him, in seven cases, he was released on bail (except in Criminal No. 634/2022, where petitioner has not been arrested). In most of the CRs, the offences alleged are under Sections 384, 120-B of the IPC. 2.[7] It appears that whilst the petitioner was in judicial custody, the Detention Order dated 6th December 2022 was issued to him under Section 3(2) of PASA Act, on various grounds as mentioned therein. As per Section 3(3) of PASA Act, when any order is made under this section by an authorised officer, he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. According to the petitioner, SQ Pathan 9/37 he ought to have been informed by the State Government within twelve days that the detention order has been confirmed by the State Government and that the State Government has constituted an Advisory Board under Section 10 of the PASA Act for confirmation of the detention of the detenue by the Advisory Board. According to the petitioner, there is nothing on record to show that the State Government has confirmed the detention order or the matter was referred to any Advisory Board for confirmation of the detention of the petitioner. 2.[8] It appears that thereafter, a supplementary representation was tendered to the District Magistrate, Silvassa i.e. the respondent No. 2 vide letter dated 3rd January 2023, stating the summary of the offences registered against the petitioner alongwith the details of bail, in which the petitioner was enlarged by the Courts, in all seven cases, except one (in which the petitioner was yet to be arrested). On bail being granted by various Courts, according to the petitioner, on SQ Pathan 10/37 complying with the necessary formalities of bail, when he was about to leave the sub-jail, Dadra and Nagar Haveli on 17th January 2023, to his utter shock and surprise, he was asked by the jail authorities not to leave the premises, as the petitioner was detained as per the order dated 6th December 2022 passed by the respondent No. 2. Pursuant thereto, the petitioner was served with an order dated 19th January 2023 issued by the learned District Magistrate i.e. the respondent No. 2 informing the petitioner that he has been detained as per order dated 6th December 2022. 2.[9] A perusal of detention order dated 6th December 2022 passed by the respondent No. 2-Bhanu Prabha, District Magistrate, Dadra and Nagar Haveli, shows that it was reported that there were five cases registered against the petitioner, details of which have been mentioned in the said detention order. The detention order (translated) passed by the respondent No. 2 which is at page 285 Exhibit `F’ reads thus: SQ Pathan 11/37 “WHEREAS, a report has been received that Mr. Vishal Kanhaiyalal Shrimali is a dangerous person who attempts to commit and abets the commission of offence punishable under Chapter XVI and XVII of the Indian Penal Code in the Union Territory of Dadra & Nagar Haveli and Daman & Diu. And his activities are sever threat to public peace, tranquility and law & order; AND WHEREAS, it has also been reported that Mr. Vishal Kanhaiyalal Shrimali commits / attempt to commits or abets commission of offence under various sections of Indian Penal Code and under Scheduled Caste / Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Crimes Mr. Vishal Kanhaiyalal Shrimali commits are organized crime under conspiracy with other and extorted huge amount of money from persons of various sectors of society Mr. Vishal Kanhaiyalal Shrimali misuses his advocate profession and threatens the victims through legal process of law for extorting money and valuable items. Mr. Vishal Kanhaiyalal Shrimali is active and is a problem for police as well as insecurity to general public at large; AND WHEREAS, it has been further reported that Mr. Vishal Kanhaiyalal Shrimali along with his associate Mr. Prithvisinh Ashoksinh Rathod and Mr. Ashoksinh Prabhatsinh Rathod formed a gang and is involved in extortion of money from transporters, businessmen, industrialist by threatening them. And they also cheat weaker / illiterate public; AND WHEREAS, it has also been reported that Mr. Vishal Kanhaiyalal Shrimali has started his criminal activities in a larger way by getting involved in cases of extortion and cheating of huge amount of money from illiterate scheduled SQ Pathan 12/37 tribes of Naroli Village and also abused them on their caste. And more than 15 persons have jointly submitted a complaint against Mr. Vishal Kanhaiyalal Shrimali; AND WHEREAS, it has been reported that it is necessary to prevent his anti-social and dangerous activities which are prejudicial to maintenance of public order And unless Mr. Vishal Kanhaiyalal Shrimali is detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 (16 of

1985) (PASA) Mr. Vishal Kanhaiyalal Shrimali will remain a threat to public order and property. AND WHEREAS, it has been also reported that the following criminal cases has been registered against Mr. Vishal Kanhaiyalal Shrimali; Sr. No. FIR No. & Date of Registratio n Status of Status of

1. 607 u/s 384, 34, 120(B) IPC 10/11/2022 Extortion Arrested Pending Investigation

2. 611/22 u/s 384, 120(B) IPC 11/11/2022 Extortion Arrested Pending

3. 612/22 u/s IPC

4. 621/22 u/s IPC 14/11/2022 Extortion Arrested Pending

5. 622/22 u/s 420, 34 IPC r/w Sec. 3(1) 14/11/2022 Cheating and Insulting Notarrested (is in SQ Pathan 13/37

(x) of SC/ST

(POA) Act, persons belonging to scheduled tribe on their caste police remand in another case) AND WHEREAS, from the view of above and upon perusal of the documents on record it is apparent that Mr. Vishal Kanhaiyalal Shrimali is a dangerous person and a threat to the peace and tranquility of the general public in the District of Dadra & Nagar Haveli. And thus, in the light of above, the undersigned is satisfied that there is a need to maintain public order by controlling such antisocial and illegal activities of Mr. Vishal Kanhaiyalal Shrimali and such elements who can cause danger to the public order must be brought under preventive detention; THEREFORE, I, Bhanu Prabha, District Magistrate, Dadra & Nagar Haveli under the powers conferred upon me under Section 3(2) of the Gujarat Prevention of Anti- Social Activities Act, 1965 (the Act) as extended to the U.T. of Dadra & Nagar Haveli read along with the order of Department of Home Affairs vide Order No. ADM/DNH/DS(H)/PASA/2019/197 Date 06/02/2019 hereby direct to arrest Mr. Vishal Kanhaiyalal Shrimali and detain him at Sub-Jail, Silvassa, Dadra & Nagar Haveli till further directions as per law. (Emphasis supplied)

2.10 It is pertinent to note that the respondent No. 2 has stated that “upon perusal of the documents on record”, however, SQ Pathan 14/37 admittedly, no documents were placed before the District Magistrate and as such, were not made available to the petitioner. It also appears that the petitioner was released on bail in all the cases, however, admittedly, none of the bail orders nor the bail applications were placed before the respondent No. 2. Thus, what were the documents on which the Detaining Authority came to a conclusion that the petitioner was a dangerous person and a threat to the peace and tranquility of the general public in the District of Dadra and Nagar Haveli is not known. On what basis the Detaining Authority arrived at a subjective satisfaction is not clear.

2.11 A perusal of the impugned detention order shows that the respondent No. 2 has very casually passed the detention order without application of mind and without there being any documents on record to arrive at any subjective satisfaction that the petitioner was a dangerous person and as such, was a threat to SQ Pathan 15/37 the peace and tranquility of the general public in the District of Dadra and Nagar Haveli. Inference has to be drawn from the material on record. In the absence of such material on record, the mere ipse dixit of the Detaining Authority is not sufficient to sustain the order of detention.

2.12 As noted above, even the Special Public Prosecutor does not dispute the fact, that no documents were placed before the Detaining Authority and hence, the question of supplying the same to the appellant does not arise. We find that the detention order is passed against the petitioner by the respondent No. 2 in a very mechanical and cavalier manner and as such, cannot be sustained in law. The case in hand is nothing but an abuse of the law of preventive detention. Hence, we pass the following order.

(i) Petition is allowed;

(ii) The detention order dated 6th December 2022 passed by the District Magistrate, Dadra and Nagar Haveli and the approval order dated 27th January 2023 passed by the Joint Secretary (Home), Dadra and Nagar Haveli and Damn and Diu are hereby quashed and setaside.

(iii) The petitioner be released forthwith, if not required in any other case.