Criminal Writ Petition No. 327 of 2001

24th January, 2002

Petitioner Counsel: Shri. M. R. DAGA
Respondent Counsel: Mrs. T. D. KHADE

Cases Cited:
Pradeep Nilkanth Paturkar Vs. S. Ramamurthi, 1993 S.C.C. (Cri) 392 [Para 9]

JUDGMENT

J. N. PATEL, J.:- Heard Mr. M. R. Daga, the learned Counsel for the petitioner and Mrs. T.D. Khade, learned A.P.P. for Respondents.

2. The petitioner who is younger brother of the detenue Vishwajeet s/o Dattaram Nakashe, has challenged the detention order passed by the respondent no.2, by this petition. The detenue Vishwajeet Dattaram Nakashe, came to be detained on 30-8-2001, on the strength of detention order dt. 23-8-2001 passed by the respondent no.2, under sub section 1 of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment-1996) (hereinafter referred to as "M.P.D.A. Act"). The detention order along with grounds of detention which are also dt. 23-8-2001 came to be furnished to the detenue which are annexed to the petition.

3. The prejudicial activities of the detenue which lead to passing of the impugned order of detention are contained in the grounds of detention.

4. The respondent no.2 - Detaining Authority having found that the petitioner is a dangerous person within the meaning of Section 2(b-1) of the Act, indulging in terrorizing activities and being member of Arun Gawli Gang, his criminal activities have created a reign of terror in the minds of public in the areas of Dhobighat, Adarsha Nagar and areas adjoining thereto within the jurisdiction of Agripada Police Station in Brihan Mumbai, and that the detenue and his associates have been moving armed with deadly weapons such as country made revolver, chopper and knife and do not hesitate to use the same while committing offences such as attempt to commit murder, extortion and threatening the peace loving citizens of the above said areas and that in spite of taking action against the detenue in the past, he was found to be still continuing his criminal activities prejudicial to the maintenance of the public order.

5. On 12-6-2001 the detenue came to be arrested for having found in possession of country made revolver and 2 live cartridges, which came to be seized from him, and offence under section 3, 25 of the Arms Act vide LAC No.775/2001, came to be registered. The detenue was produced before the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai on 13-6-2001 and was remanded to police custody till 22-6-2001. On 22-6-2001 when he was again produced for remand before the said Court, he moved an application for bail, and was ordered to be released on bail in the sum of Rs.3000/- with surety or cash, and it is on 26-6-2001, the detenue came out on bail. In the meantime the confidential enquiries were made into the criminal activities of the detenue and his associates, and it was found that though there were number of people who had suffered at the hands of the detenue and his associates, they were not willing to come forward and lodge complaint or give evidence against the detenue, therefore the police were able to obtain in-camera statements of only two witnesses, on assuring them that they will not be called upon to give evidence in any Court or any other forum. The Statement of witness 'A', came to be recorded on 12-6-2001, which discloses that in the 3rd week of May, 2001 at about 19.30 hours the detenue alongwith his associates had come to his shop and demanded sum of Rs.5000/-, and as the witness expressed his inability to pay, associate of the detenue took out revolver and pointed it towards the witness and threatened him, as a consequence of which the customers ran away. On being so threatened out of fear the witness paid Rs.1500/2000. Similarly statement of witness 'B' came to be recorded on 14-6-2001, according to him in the last week of May, 2001 at about 19.00 hours the detenue and his associates went to his shop and demanded Rs.5000/-. As the witness expressed his inability to accede to his demand, they threatened him of dire consequence and that they were able to force the witness to pay Rs.2000/3000, which he paid out of fear. Therefore based on the case registered against the detenue under Arms Act, and these two in camera statements of witnesses A and B, recorded by the police the Detaining Authority was subjectively satisfied that the Detenue was dangerous person within the meaning of Section 2(b-1) of M.P.D.A. Act, and in his opinion the action taken against the detenue under the normal law of the land was inadequate and ineffective to deter him from indulging in criminal activities which are prejudicial to the maintenance of public order, and that the detenue has created a terror in the localities and areas within the jurisdiction of Agripada Police Station, Brihan Mumbai, and the people in the locality and areas are experiencing a sense of insecurity and are living and carrying out their daily routine under the constant shadow of fear whereby the even tempo of life of society is disturbed and because of these activities of the detenue and his associates are prejudicial to the public order and, therefore, he came to be detained.

5A. Mr. Daga, the learned Counsel appearing for the petitioner, submitted that though the petitioner has raised various grounds to challenge the order of detention, ground no.11 is sufficient to quash and set aside the order of detention. According to Mr. Daga, there has been undue delay of about three months in issuance of the detention order, which vitiates the genuineness of the subjective satisfaction of the respondent no.2, which clearly goes to show that the respondent no.2 was not serious in issuing order of detention. Mr. Daga, further submitted that due to the delay in issuing detention order, the livelink between the prejudicial activity of the detenue and the rationale of clamping a detention order on him is snapped, vitiating the detention order in law, and therefore deserves to be quashed and set aside.

6. Mrs. Khade, the learned A.P.P. appearing for the respondents, submitted that the proposal in the matter was forwarded immediately after the incamera statements of Witness 'B' came to be recorded on 14-6-2001. That the proposal was sent on 18-6-2001, which was routed through various branches and when it was approved at all points, the detention order came to be passed on 23-8-2001, and therefore it cannot be said that there was undue delay of about three months in passing the detention order. It is submitted that there is sufficient material on record which was taken into consideration by the Detaining Authority in arriving at a subjective satisfaction, and therefore the petition deserves to be dismissed.

7. In the affidavit in reply filed by the respondent no.2 to ground no.11 raised by the petitioner, it is stated that the proposal for detention was submitted on 18-6-2001 to the Deputy Commissioner of Police, to Additional Commissioner of Police, South Region, and then to Deputy Commissioner of Police (Preventive) and then to the Commissioner of Police, Brihan Mumbai to pass the order of detention. It is submitted that all the officers to whom the proposal was forwarded went through the papers and the Commissioner of Police in the ultimate carefully examined all the materials and passed the order of detention on 23-8-2001, and the detention order is proper and legal and there is no undue delay as alleged by the petitioner.

8. Since preventive detention is a serious invasion of personal liberty and in the justification to the ground of detention of activity prejudicial to the community, the Court would scrutinize the delay at such subjective satisfaction, and when there is no satisfactory explanation for such delay it would strike off the order of detention, that the order was passed by the relevant Authority without applying its minds, and there was no genuine subjective satisfaction which is a prerequisite for making such order. Further the Court also has to keep in mind that if there is undue and long delay between the prejudicial activities and passing of detention order, the live link between the prejudicial activities and purpose of detention is snapped, which would vitiate the detention order.

9. In Pradeep Nilkanth Paturkar Vs. S. Ramamurthi and others, 1993 S.C.C. (Cri) 392, the Supreme Court has examined the various decisions on this issue and quashed the detention order on being satisfied that the delay caused in passing the detention order was fatal.

10. In the present case what we find is that if the detenue came to be arrested on 12-6-2001 for being found in possession of revolver and live cartridges for which offence under section 3, 25 of the Arms Act, came to be registered, against him vide L.A.C. No.775/2001 at Agripada Police Station, and the detenue was ordered to be released on bail on 22-6-2001 and availed the bail on 26-6-2001. It is only after his arrest in this case that the police started making confidential enquiries into the criminal activities of the detenue and, they could not get any material regarding the same, inrespect of his criminal activities prior to 12-6-2001. If that was so then immediately after recording incamera statements of two witnesses when the proposal was sent to the Detaining Authority on 18-6-2001, to order detention of the detenue on the basis of the offence under the Arms Act, and two incamera statements, there was no other material placed before the Detaining Authority for its consideration, the Detaining Authority ought not to have taken such a long time for passing the detention order i.e. from 18-6-2001 till the detention order came to be passed on 23-8-2001. The Detaining Authority in his affidavit in reply has tried to explain the delay by stating that the proposal for detention was submitted on 18-6-2001 to the Deputy Commissioner of Police, to Additional Commissioner of Police, South Region and Deputy Commissioner of Police (Preventive) and then to Commissioner of Police, Brihan Mumbai to pass order of detention. It has failed to explain as to why these authorities took such a long time in processing the matter, and what was required to be done, which caused the delay, and therefore we are satisfied that on facts this unexplained delay has vitiated the detention order.

11. An attempt was made by the respondent no.2 to explain the delay by filing an additional affidavit before the Court in the matter. We fail to understand as to why the Detaining Authority felt it necessary to file Additional Affidavit though it had already replied to the ground of delay in his original return filed on affidavit in answer to the petition. The learned A.P.P. has drawn our attention that this additional affidavit was necessciated as this court has directed the Detaining Authority to explain the delay in issuing detention order in detail at every stage as the proposal went through various authorities, and therefore he has filed this Additional Affidavit to that effect. In the record and proceedings we have not come across any such order nor at any time the Detaining Authority sought permission of this court to file such an affidavit. On the other hand it appears to be an after thought, the Detaining Authority having realized that the impugned order of detention is likely to be quashed on this ground, has come up with this false explanation to enable him to file additional affidavit. We are ignoring the additional affidavit filed by the Detaining Authority, as the same is filed without seeking appropriate orders from the Court, as in the Additional Affidavit the Police Commissioner, has overstepped his Authority by making a false claim that this High Court was pleased to direct him to explain the delay. We hope the Detaining Authority would be cautious in future, as we are dropping the issue by merely warning him, otherwise this Curt would have initiated action against the Detaining Authority for having committed Contempt of this Court in referring to a non-est order as the basis for filing additional affidavit.

12. Therefore, in our opinion this is a fit case to quash and set aside the impugned order of detention, taking into consideration the unexplained delay on the part of the Detaining Authority in passing the impugned order of detention. The detention order is therefore, quashed and set aside. The detenue is directed to be released forthwith if not required in any other case. Rule made absolute.

Petition allowed.