2004 ALL MR (Cri) 2356
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S. RADHAKRISHNAN AND R.S. MOHITE, JJ.

Shri. Rajendraprasad Gupta @ Munnabhai @ Rajubhai Surajlal Gupta Vs. Shri. R. S. Sharma And Ors.

Criminal Writ Petition No.1350 of 2003,Criminal Writ Petition No.1418 of 2003,Criminal Writ Petition No.1431 of 2003,Criminal Writ Petition No.1452 of 2003,Criminal Writ Petition No.1644 of 2003,Criminal Writ Petition No.1715 of 2003,Criminal Writ Petition No.1829 of 2003,Criminal Writ Petition No.1888 of 2003,Criminal Writ Petition No.1974 of 2003,Criminal Writ Petition No.36 of 2004,Criminal Writ Petition No.37 of 2004,Criminal Writ Petition No.205 of 2004,Criminal Writ Petition No.240 of 2004,Criminal Writ Petition No.288 of 2004,Criminal Writ Petition No.472 of 2004,Criminal Writ Petition No.1480 of 2003

23rd April, 2004

Petitioner Counsel: Shri. U. N. TRIPATHI
Respondent Counsel: Shri. SHIRISH GUPTE,Smt. A. S. Pai

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), Ss.3(1), 12 - Order of detention - Service of order of confirmation upon detenu by the State Government - Held, there is no statutory requirement under the Act to serve the order of confirmation upon the detenu.

There is no statutory requirement under the MPDA to serve the order of confirmation upon the detenu by the State Government. The order of confirmation is separate and distinct from its communication to the detenu. It is also clear that if the said order is not communicated at all to the detenu, that be itself would be an irregularity which does not make the detention otherwise legal, illegal. This being the position even as regards non communication a mere mistake in the wording of the communication would not by itself vitiate the order of confirmation, and would not render the detention illegal.

Whether it be the stage of approval or consideration of representation or confirmation, on each occasion the concerned authorized officer is required to apply his mind to the relevant material, which is required to be considered by law, afresh. The reason for this is that the purpose for which the concerned officer looks at this material on each of these occasion is different. For example, he is considering the material for the purpose of granting an approval to the detention order, the purpose of which he looks at the relevant material placed before him is in order to determine whether there is sufficient cause for detention and as to whether the detention is authorized. When he looks at the relevant material at the stage of confirmation of the order, what he is required to be determined is whether in his subjective opinion, the propensity and potentiality of committing similar offences exists on the date of the passing of confirmation order and is likely to extend to the period for which the detention is being confirmed. It may be that material is the same. At the later stage of confirmation, there might be additional material placed before him. At this stage, the opinion of the Advisory Board is also a further material placed before him. Even as regards the original grounds of detention and material and support thereof, the angle and purpose for which he looks at this material is different at the stage of confirmation and hence the material is required to be re-scanned afresh. 1972 SCC (Cri) 45 and AIR 1988 SC 934 - Followed. [Para 7,8,12]

Cases Cited:
Deb Sadhan Roy Vs. State of West Bengal, 1972 SCC (Cri) 45 [Para 7]
Vijay Kumar Vs. Union of India, AIR 1988 SC 934 [Para 11]


JUDGMENT

R. S. MOHITE, J. :- The aforesaid group of 16 Criminal Writ Petitions, are filed on similar background of facts and raise a single common law point. All the petitions are therefore being disposed off by this common judgment and order.

2. Undisputed facts in all these petitions are that the Commissioner of Police, Brihan Mumbai issued on order of detention against the detenues on behalf of whom these petitions have been filed under the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to ad MPDA Act). Along with the orders of detention the detenues were served with the grounds of detention. Admittedly the orders of detentions were approved by State Government in accordance with Section 3(3) of MPDA Act.

3. Consequent to their detention, the detenues made representations to the State Government and Chairman of the Advisory Board. The Advisory Board after considering the mater placed before it, as also representations made by the detenues, concluded that these was sufficient cause of detention. This opinion/report of the Advisory Board was forwarded to Home Minister, State of Maharashtra for confirmation of the detention, in accordance with Section 12 of MPDA Act.

4. The record in the aforesaid cases indicate the uniform procedure that has thereafter been followed by the State of Maharashtra while confirming the orders of detention. This procedure followed by the State of Maharashtra has been outlined in an affidavit filed in each of the petition by the Detaining authority. The same was as under:-

a) On receipt of opinion/report of the Advisory Board along with representation of the detenu, the same were processed by an Assistant and forwarded to the Section officer. On perusal of the original record we find that the term "process" means that the Assistant has prepared a note. We have perused the almost identical notes prepared by the Assistant and on perusal of the same we noticed that the same referred to the passing of the detention order, the grant of approval, the referring of the matter to the Advisory Board, formation of the opinion of Advisory Board that there was sufficient cause for detention of the detenu and due attention to the representation/s made by the detenu to the Advisory Board. Due attention to earlier representation/s made by the detenu to the State of Maharashtra which had been rejected. In some matters, gist of the points raised in the representation along with comments are contained in the note along with recommendations that the representation should be rejected because there is no merit therein. Note ends with a recommendation that detention order against the detenues should be confirmed and they should be detained for a period of one year.

b) This note prepared by the Assistant has been forwarded to the concerned Section officer and the Section officer after giving his approval by way of appending his signature has forwarded the same to the Deputy Secretary. The Deputy Secretary in turn has forwarded the representation to the Principal Secretary (P.D.). The Principal Secretary (P.D.) by her endorsement then forwarded the same to the Additional Chief Secretary (Home), Government of Maharashtra who was authorized to confirm the detention.

In all except 3 of 16 cases which are being disposed off, the authorized officer, i.e.the Additional Chief Secretary (Home), Mumbai confirmed the detention orders by merely affixing his signature below the aforesaid note put up before him. In two cases which are subject matters in Writ Petition No.1437 of 2002 and Writ Petition No.288 of 2004, he added the words "agreed" and signed. Only in one case being the subject matter in Writ Petition No.472 of 2004 he put up an endorsement "approved considering the facts of the case" and signed the order.

c) It is an admitted position that subsequently the order signed by an Under Secretary to Government of Maharashtra, Home Department (Special) and issued by order in the name of Governor of Maharashtra was served upon the detenues. By this document, the Government of Maharashtra communicated the confirmation of detention of the detenues for a period of one year from the date of detention in the following terms.

"Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 12 of the said Act, the Government of Maharashtra hereby confirms the said detention order and continues the detention of the said person for a period of one year from the date of his detention under the said Act. This order is issued as per directions of the Advisory Board, who had determined that there is sufficient cause for the detention..."

5. The solitary point of law that has been raised and pressed in these group of petitions, have been averred in the following words :

" The petitioner says and submits that the detenu was detained in pursuance to an Order of Detention vide D.O. No.89/PCB/DP/Zone X/2003 dated 09-07-2003 passed by the Commissioner of Police, Greater Bombay. The above said order of detention was confirmed by the State Government vide confirmation order dated 28-08-2003 issued by the Government of Maharashtra, Home Department (Spl) wherein it is clearly state that "the said confirmation order is issued as per the direction of Advisory Board" who have determined that there is sufficient cause for the detention of the detenu. It is therefore clear that the confirmation of the detention order of the detenu is made as per the direction and under dictation of Hon'ble Advisory Board, thereby it is further clear that the State Government has not applied its mind independently to the facts in this case while confirming the order of detention rather has confirmed the detention order of the detenu under the direction and being influenced by the Advisory Board. The Petitioner says and submits that as per the provisions of MPDA Act, 1981 the Advisory Board do not enjoy any such power to direct the State Government as such, it can not direct the State Government to confirm or revoke the order. The petitioner says and submits that as per the Scheme of the Act which is crystal clear from the wording of the provisions of the Act, the intention of the legislatures is that the Advisory Board has to report its opinion and the State Government may confirm the detention order. Whereas in the instant case it is clearly mentioned in the confirmation order that the State Government has issued the confirmation order as per direction of the Advisory Board which is not correct and the requirement of law as laid down in Section 12(1) of the Act. The State Government is called upon to produce a copy of the said direction if available with State Government in writing to this Hon'ble Court. If that is not the case the averment made in the confirmation order is a false statement. It is therefore issuing a Confirmation order by the State Government as per the direction of the Advisory Board is absolutely illegal and contrary to Section 12(1) of M.P.D.A. Act, 1981, as such the continued detention of the detenu is illegal and bad-in-law. In consequence the detention order is also illegal and bad in law ought to be quashed and set aside."

d) Respondents made an attempt to rebut this ground by filing an affidavit of various officers who had confirmed the detention. Gist of the replies of the said officers was that they were empowered to pass such an order. That opinion/report of the Advisory Board along with the representation of the detenu had been received by Home Department and that such opinion/report of the Advisory Board along with representations were processed by the concerned Assistant and forwarded to the concerned Section officer. That Section officer gave his endorsement on the same and forwarded it to the concerned Deputy Secretary. The Deputy Secretary forwarded the same to the Principal Secretary (P.D.) and Principal Secretary (P.D.) by her endorsement forwarded it to the various officers. In some of the cases authorized officer has asserted that they have independently considered all the facts of the case including opinion/report of the Advisory Board, and representations of the detenu and confirmed the order of detention against the detenu for a period of one year. In some other cases instead of directly asserting that they have independently considered all the facts of the case, the authorized officer have filed an affidavit stating that record and file unmistakably indicate that the authorized officer has passed the confirmation order after considering all the facts of the case including opinion/report of the Advisory Board and same was not done as per directions of the Advisory Board. It is contended in the reply that words used in communicating the confirmation order would not itself vitiate the order of confirmation or detention and the same had not caused any prejudice to the detenu.

6. Shri. Tripathi, learned Advocate appearing on behalf of the Petitioners in all these cases vehemently submitted that documents styled as an order which was served upon detenues were in fact the order of a confirmation. This was countered by the learned Additional Solicitor General Shri. S. M. Gupte who appeared on behalf of State of Maharashtra by pointing out that what served upon the detenu in each of these cases was not the original confirmation order but was a document in the nature of communication. He produced for our perusal the files pertaining to the record in each of these cases and contended that the signature of the authorized officer below the note prepared by the Assistant as aforesaid was the order of confirmation made by the State of Maharashtra. In respect of various detentions under consideration, he contended that a mistake committed at the stage of communication, would not vitiate the original order of confirmation on the file and consequently it would not vitiate the confirmation or detention of the concerned detenu.

7. We have considered the submission of both sides on this point and we are inclined to agree with the contention canvassed by Counsel for the State. A glace at Section 12 of MPDA Act indicates that "In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period, not exceeding the maximum period prescribed by section 13, as it thinks fit". There is no statutory requirement under MPDA to serve the order of confirmation upon the detenu. The question as to whether an order of confirmation of an order of detention by State Government should be served upon the detenu and the effect of non service, if any, was dealt with by the Apex Court in the case of Deb Sadhan Roy Vs. State of West Bengal reported in 1972 Supreme Court Cases (Cri) 45. In para 11 of the said judgment, the Apex Court observed as under:

"Though there is no provision in the Act an order of confirmation which has the effect of extending the period of detention beyond the mandatory period of three months must be made known to the detenu. In our view there is no warrant or justification for an order confirming the detention on the opinion of the Board which has the effect of extending the period of detention remaining in the files of the executive without the same being communicated to the person most concerned - the detenu - whose freedom has been subjected to jeopardy. He is entitled to know that the Board had considered his representation as well as his personal submissions if he has chosen to appear before it and that it had been found that there was sufficient cause for his detention and that the State Government has agreed with it. Biren Dutta and Others Vs. Chief Commissioner of Tripura and Another, another Constitution Bench of this Court had to consider this matter on the provisions of Rule 30(1)(b) and Rule 30-A(8) of the Defence of India Rules, 1962. Gajendragadkar, J. speaking for the Court held that even under those rules the authority exercising the power under Rule 30A(8) should record its decision clearly and unambiguously extending the period of detention beyond six months which was the limit under those rules, for he observed, "After all, the liberty of the citizen is in question and if the detention of the detenu is intended to be continued as a result of the decision reached by the appropriate authority, it should say so in clear and unambiguous terms". While the decision of the Government to confirm the opinion of the Board which according to the decision in Dattatray Moreshwar Pangarkar (supra) has the effect of extending the period of detention beyond three months is in consonance with the tenor of the Act as well as the provisions of the Constitution, there is nothing to warrant the submission that the order of confirmation and extension of the period of his detention should also be within three months from the date of detention. (Nonetheless the communication must be within a reasonable time. What is a reasonable time must necessarily depend upon the circumstances of each case. The effect of non communication, however, may be an irregularity which does not make the detention otherwise legal, illegal. In Biren Dutta's case (supra) the Court was of the view that though under Rule 30-A(8) there is nothing to indicate that the appropriate authority should communicate to the detenu the decision to extend the period beyond three months, "it is desirable and it would be fair and just that such a decision should in every case be communicated to the detenu"."

8. From these observations of the Apex Court it follows that the order of confirmation is separate and distinct from its communication to the detenu. It is also clear that if the said order is not communicated at all to the detenu, that be itself would be an irregularity which does not make the detention otherwise legal, illegal. This being the position even as regards non communication in our view a mere mistake in the wording of the communication would not by itself vitiate the order of confirmation, and would not render the detention illegal.

9. In order to find out what is the true and correct position and exact content of confirmation order, we have perused the original files in each of these cases. The procedure that is followed by the State of Maharashtra while confirming the detention of the detenu has already been outlined by us hereinabove.

10. We find that in all but one case, in the original order of confirmation, there is nothing with original files to indicate that the authorized officer who has confirmed the order has applied its mind to the grounds of detention and the material which formed the basis of detention.

11. As to what is required to be looked into while confirming an order of detention, has been specified by the Apex Court in the case of Vijay Kumar Vs. Union of India and Ors. reported in AIR 1988 Supreme Court 934. In para 38 of the said judgment the Apex Court has observed as follows :-

"If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression "as it thinks fit" IN Section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention. The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under Section 10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed."

(emphasis provided)

12. In all the 16 cases before us we find that the note which was prepared by the Assistant and put up to his superior officer made no mention to the grounds of detention and supporting material. The note pertains only to report/opinion of the Advisory Board and to the representation/representations made by the detenu. In our view mere affixation of his signature below such a note by the authorized officer does not indicate that he had formed his subjective satisfaction on the basis of the relevant material as there was nothing to indicate that he had perused the grounds of detention and material supporting it. In two cases where he has added the orders "agreed" before putting his signature, the situation is not different as word "agreed" must be read in conjunction with the notes which were devoid of any reference to the grounds of detention or material in support. It is argued by the learned Counsel on behalf of State that State of Maharashtra had taken into account the grounds of detention and material in support while approving the various detentions as required by Section 3(3) of MPDA. He submitted that State had also applied its mind to the grounds of detention and material on record while rejecting the representation/s made by the detenu to the State Government. He contended that therefore even assuming that grounds of detention and material in support were not taken into consideration at the stage of confirmation, yet that by itself could not be said to be infirmity which would vitiate the confirmation order as also the detention of detenu. We do not agree with this submission canvassed by Counsel for the State. In our view whether it be the stage of approval or consideration of representation or confirmation, on each occasion the concerned authorized officer is required to apply his mind to the relevant material,which is required to be considered by law, afresh. To our mind the reason for this is that the purpose for which the concerned officer looks at this material on each of these occasion is different. For example, he is considering the material for the purpose of granting an approval to the detention order, the purpose of which he looks at the relevant material placed before him is in order to determine whether there is sufficient cause for detention and as to whether the detention is authorized. When he looks at the relevant material at the stage of confirmation of the order, what he is required to be determined is whether in his subjective opinion, the propensity and potentiality of committing similar offences exists on the date of the passing of confirmation order and is likely to extend to the period for which the detention is being confirmed. It may be that material is the same. At the later stage of confirmation, there might be additional material placed before him. At this stage, the opinion of the Advisory Board is also a further material placed before him. Even as regards the original grounds of detention and material and support thereof, the angle and purpose for which he looks at this material is different at the stage of confirmation and hence in our view, the material is required to be re-scanned afresh.

13. Having said this we find that in one singular case of detention which is the subject matter of Writ Petition No.472 of 2004, the authorized officer, below the concerned notes has observed "approved considering the facts of the case" and signed below this. This indicates that he has arrived on the subjective satisfaction on the facts of the case which he may have obtained on reading grounds of detention and material contents in the file. In this particular case alone, we are not inclined to interfere with the subjective satisfaction expressed by the authorized officer while passing the order of confirmation.

14. However in the other 15 cases we find that confirmation orders have been passed without application of mind to all the relevant factors required to be considered particularly as there is nothing to indicate that grounds of detention and material in support thereof were considered by the authorized officer while passing these confirmation orders. We are, therefore, inclined to quash and set aside these confirmation orders in these other 15 cases.

15. Before parting with these matters, we would like to place on record that in detention matters, like in other routine administrative matters, the method of arriving at a decision has been by formulation of a note by a junior officer and the said note and file moving upward through the offices of several officers before they reach the table of the concerned authorized officer. We would like to express our view that while confirming a detention order it would be a desirable procedure that the opinion/report of the Advisory Board together with representation and other relevant documents like grounds of detention including material in support are tagged and put up before the authorized officer for his consideration, directly. It is always open for the authorized officer to take the assistance of concerned officials if he so desires. The procedure of several subordinate officers merely appending their signatures before the passing on of the file does not serve any useful purpose and only contributes to the delay.

Hence the following Order :

ORDER

i) In the net result rule in Writ Petition Nos.1350/2003, 1418/2003, 1431/2003, 1452/2003, 1644/2003, 1829/2003, 1888/2003, 1974/2003, 36/2004, 37/2004, 205/2004, 240/2004, 288/2004 and 1480/2003 is made absolute in terms of prayer clause (c).

ii) Rule in Criminal Writ Petition No.1715 of 2003 is made absolute in terms prayer clauses (a) and (b).

iii) Rule in Criminal Writ Petition No.472 of 2004 is discharged.

iv) The detenu in all Criminal Writ petitions mentioned in clauses (i) and (ii) of the order, be set at liberty forthwith if not required in any criminal cases.

The learned A.P.P. for State at this stage prays for stay of the operation of the judgment and order for a short period. She indicates that if the stay for a period of 3 weeks from today, no further extension will be asked from this Court. On this assurance given by the learned A.P.P., we do hereby stay the operation of the judgment and order for a period of 3 weeks from today.

Parties to act on the copy of this order duly authenticated by P.S./Sheristedar of the Court.

Certified copy expedited.

Order accordingly.