Criminal Writ Petition No. 677 of 2005

20th January, 2006

Petitioner Counsel: Shri. S. A. JAISWAL
Respondent Counsel: Shri. S. G. LONEY

Cases Cited:
Samsher Ali s/o. Ramjan Ali Vs. State of Maharashtra, 2003 ALL MR (Cri) 1057 [Para 3]
Commissioner of Police Vs. Gurubux Anandram Bhiryani, 1988 (Supp) SCC 568 [Para 3]
Mrs. T. Devaki Vs. Government of Tamil Nadu, AIR 1990 SC 1086 [Para 3]
Ashok @ Bawaji s/o. Champalal Yadav Vs. State of Maharashtra, Cri. W.P. No.716 of 2004, dt.15-2-2005 [Para 4,5]
Kamla Kanhaiyalal Khushalani Vs. State of Maharashtra, AIR 1981 SC 814 [Para 4]

JUDGMENT

A. P. LAVANDE, J. : - By this petition, the petitioner challenges the order dated 26-2-2005 passed by respondent no.2 Commissioner of Police, Amravati in exercise of powers conferred by Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "the Act") read with the Government Order No.DDS.1303/10/Part-IV/SPL-3(B) dated 23-12-2004, detaining the petitioner. The said order was approved by the State Government on 3-3-2005 under Section 3(3) of the Act.

2. We have heard Mr Jaiswal, learned counsel for the petitioner and Mr. Loney, learned Additional Public Prosecutor for the respondents.

3. At the outset, Mr. Jaiswal submitted that in the impugned order the respondent no.2 has not mentioned the period of detention and therefore, the detention order is vitiated. In support of his submission, learned counsel relied upon the judgment of the Division Bench of this Court reported in 2003 ALL MR (Cri) 1057 (Samsher Ali s/o. Ramjan Ali Vs. State of Mah. and Anr.). In the said judgment this Court after placing reliance upon the judgment of the Apex Court in the case of Commissioner of Police and another Vs. Gurubux Anandram Bhiryani, (1988 (Supp) SCC 568) allowed the petitioner filed by the petitioner challenging the order of detention passed by the Commissioner of Police, Nagpur on the ground that the period of detention was not specified.

Per contra, Mr. Loney submitted that the judgment in the case of Gurubux Bhiryani (supra) has been expressly overruled by the Apex Court by the judgment rendered in the case of Mr. T. Devaki Vs. Government of Tamil Nadu and others, (AIR 1990 Supreme Court) 1086). In the said judgment while overruling the judgment of the Apex Court in Gurubux Bhiryani's case, the Apex Court has held that the order of detention is not vitiated on the ground that the period of detention is not specified in the order. In view of the judgment of the Apex Court which has expressly overruled ratio laid down in Gurubux Bhiryani's case, we are unable to accept the submission of the learned counsel appearing for the petitioner. We are also unable to place any reliance upon the judgment in Samsher Ali's case (supra) rendered by this Court since the said judgment which has in turn relied upon the judgment in Gurubux Bhiryani's case has been overruled by the subsequent judgment of the Apex Court. Therefore, the judgment rendered by this Court in the case of Samsher Ali s/o. Ramjan Ali is per in curium and does not lay down the correct law in view of the subsequent judgment in T. Devaki's case (supra). We are, therefore, unable to accept the submission of Mr. Jaiswal that the detention order is vitiated on the ground that the period of detention is not mentioned in the impugned order.

4. The next ground urged by Mr. Jaiswal is that the petitioner has not been supplied with the copies of two In-camera statements referred to in paras 9.1 and 9.2 of the impugned order. The respondent no.2 placed reliance upon two In-camera statements dated 15-2-2005 in support of the impugned order. Learned counsel placing reliance on the unreported judgment of this Court dated 15-2-2005 rendered in Criminal Writ Petition No.716 of 2004 (Ashok @ Bawaji s/o Champalal Yadav Vs. State of Maharashtra and another) submitted that in view of the fact that the respondent no.2 failed to furnish to the petitioner copies of In-camera statements of two witnesses relied upon by him in support of the impugned order, the impugned order is vitiated.

Relying upon the said judgment, Mr. Jaiswal submitted that on this ground alone the petition is liable to be allowed in as much as the impugned order passed is vitiated on account of non-supply of two In-camera statements which have been relied upon by the respondent no.2 for the purpose of passing the impugned order. He further submitted that by non-supply of copies of the said two In-camera statement, there is a clear violation of Article 22(5) of the Constitution of India since the petitioner has been deprived of making effective representation against the order of the detention. The petitioner has taken specific ground in the petition of non-supply of In-camera statements to him. The respondent no.2 has filed affidavit opposing the petition. While dealing with this ground the respondent no.2 has denied the same and submitted that all the relevant documents have been supplied to the petitioner. When called upon to produce proof to support supply of copies of two In-camera statements of the petitioner, Mr. Loney fairly conceded that the copies of two In-camera statements were not supplied to the petitioner. That being the factual position, we find considerable merit in the submission of Mr. Jaiswal that the order of detention is vitiated on account of non-supply of copies of two In-camera statements relied upon by the respondent no.2 for the purpose of passing the impugned order. The Division Bench of this Court in Ashok Yadav's case (supra) relying upon the judgment of the Apex Court in Kamla Kanhaiyalal Khushalani Vs. State of Maharashtra and another, AIR 1981 SC 814, has held that in view of Article 22(5) of the Constitution of India, the Detaining Authority is under an obligation to supply all the materials and documents, which are relied upon by it to make order of detention, to the detenu and any deviation from this procedure by the Detaining Authority would result in violation of right of detenu guaranteed under Article 22(5) of the Constitution and on this count, order of detention would be vitiated.

5. In view of the ratio laid down in Ashok Yadav's case (supra) it is evident that the order of detention dated 26-2-2005 passed by respondent no.2 detaining the petitioner under Section 3 of the Act is vitiated. Consequently, the order of detention passed by respondent no.2 deserves to be quashed and set aside.

6. Mr. Jaiswal has also urged several other grounds in support of the petition. However, since we are inclined to allow the petitioner on the ground of non-supply of copies of two In-camera statements which have been relied upon by the respondent no.2, we deem it not necessary to deal with the same.

7. In the result, therefore, writ petition is allowed. The impugned order dated 26-2-2005 passed by respondent no.2 is quashed and set aside. The petitioner Sk. Israil Sk. Babbu is directed to be released forthwith unless required in any other case.

Writ petition is disposed of in the aforesaid terms.

Petition allowed.