Criminal Writ Petition No.46 of 2014

13th October, 2014.

Petitioner Counsel: Mr. U.N. TRIPATHI
Respondent Counsel: Mr. S.K. SHINDE, Mr. J.P. YAGNIK

Cases Cited:
N. Sengodan Vs. State of Tamil Nadu, (2013) 8 SCC 664 [Para 3]
Shri Pawan Kharetilal Arora Vs. Shri Ramrao Wagh and Ors., 2009 ALL MR (Cri) 1729 [Para 3]
Nilabati Behera Vs. State of Orissa and Others, 2013 ALL SCR (O.C.C.) 36=(1993) 2 SCC 746 [Para 5]

JUDGMENT

A. S. OKA, J. :- An order of preventive detention was passed against the Petitioner on 2nd December, 2013 under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short "the said Act"). By order dated 18th January, 2014, the State Government in exercise of powers under SubSection (1) of Section 12 of the said Act revoked the order of detention and ordered release of the Petitioner. Initially, in this Petition, a prayer was made for quashing and setting aside the order dated 2nd December, 2013. Thereafter, an amendment was carried out and a prayer was incorporated for grant of compensation on account of wrongful detention of Petitioner.

2. The learned counsel appearing for the Petitioner submitted that the issue of validity and legality of the order dated 2nd December, 2013 will have to be considered by this Court for the purposes of considering the case of the Petitioner for grant of compensation. Inviting our attention to the order dated 2nd December, 2013 (for short "the order of detention"), he urged that the recording of subjective satisfaction that it is necessary to preventively detain the detenu with a view to prevent him from acting in any manner prejudicial to the maintenance of public order is a condition precedent for exercise of power under Sub-Section (1) of Section 3 of the said Act. He invited our attention to the order of detention and urged that there is no such subjective satisfaction recorded in the said order. He also invited our attention to the grounds of detention served upon the Petitioner in accordance with Section 8 of the said Act. He urged that from the grounds it appears that the Petitioner was ordered to be preventively detained due to alleged criminal behaviour of the Petitioner and due to great fear in the mind of the members of the public about their safety. He urged that even in the grounds of detention, there is no subjective satisfaction recorded that the Petitioner being a dangerous person, his activities are prejudicial to the maintenance of public order. He pointed out that the Detaining Authority has not recorded the subjective satisfaction after showing awareness about the orders of bail granted to the Petitioner in various criminal cases. He invited our attention to the relevant part of the grounds of detention wherein the Detaining Authority has relied upon the in-camera statements of witnesses A and B. He pointed out that satisfaction of the Detaining Authority about the truthfulness of the incamera statements has not been recorded. He urged that various documents set out in ground G of the Petition which were incorporated in the list of relied upon documents were illegible and thus, clause 5 of Article 22 of the Constitution of India has been violated.

3. He urged that under the provisions of the said Act, the State Government is required to confirm/approve the order of preventive detention. He urged that the State Government is required to apply its mind to the order of detention. He submitted that the order of detention does not record any subjective satisfaction of the Detaining Authority in terms of Section 3 of the said Act and, therefore, it was the duty of the State Government to apply its mind to the contents of the order and the contents of the ground of detention before granting approval. He urged that if at that stage, there would have been an application of mind by the concerned Authority of the State Government, the Petitioner would not have continued in detention for a period of 45 days. He pointed out that a representation was made by the Petitioner through his Advocate on 3rd January, 2014 but the Petitioner was ordered to be released 14 days thereafter. He invited our attention to the reply filed by the Detaining Authority. He urged that the reply itself substantiates the case of the Petitioner. He pointed out that the Petitioner is a qualified Engineer who had a job in one of the Tata Group of Companies. He contended that his employment was terminated as a result of his detention for a period of 45 days. He, therefore, urged that this was a fit case to grant compensation to the Petitioner. He submitted that as there is a gross violation of fundamental rights guaranteed to the Petitioner under Article 21 and Article 22 of the Constitution of India, in this Writ Petition under Article 226 of the Constitution of India, this Court can always grant compensation. He has placed reliance on various decisions of the Apex Court for showing that the order of detention is vitiated. The learned counsel also relied upon the decision of the Apex Court in the case of N. Sengodan Vs. State of Tamil Nadu (2013) 8 SCC 664. He urged that in the present case, there is a complete nonapplication of mind which amounts to abuse of power and, therefore, this is a fit case to grant compensation as done by the Apex Court. He laid emphasis on the decision of this Court in the case of Shri Pawan Kharetilal Arora Vs. Shri Ramrao Wagh and Ors. 2009 ALL MR (Cri) 1729 He also relied upon various other decisions in support of his claim for compensation.

4. The learned Public Prosecutor produced for perusal of the Court, the file of the Detaining Authority and has placed on record photocopies of the relevant documents in the file. He urged that there is nothing wrong about the decision making process adopted by the Detaining Authority. He pointed out that no malafides can be attributed to the Detaining Authority. He invited our attention to the grounds of detention and pointed out the extent of the prejudicial activities of the Petitioner. He urged that in the light of the said prejudicial activities that the detaining authority passed the order of detention in a bonafide manner. He urged that even assuming that the impugned order of detention is vitiated, unless there are malafides attributed to Detaining Authority, the order of compensation cannot be made.

5. The learned counsel appearing for the Petitioner by way of reply relied upon the decision of the Apex Court in the case of Nilabati Behera Vs. State of Orissa and Others (1993) 2 SCC 746 : [2013 ALL SCR (O.C.C.) 36]. He urged that for violation of fundamental right under Article 21 of the Constitution of India, a Writ Court can always grant compensation. He urged that it is necessary to ensure that the authorities exercising powers under Section 3 of the said Act as well as under the other laws in relation to the preventive detention do not exercise their power in a casual manner thereby committing gross violation of fundamental rights of a citizen. He urged that inference of legal malafides ought to be drawn from the manner in which the impugned order has been passed.

6. We have given careful consideration to the submissions. It will be necessary to make a reference to Section 3 of the said Act which reads thus :-

"3. Power to make orders detaining certain persons.-

(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (1), exercise the powers conferred by the said subsection.

Provided that the period specified in the order made by the State Government under this subsection shall not, in the first instance, exceed (six months), but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding (six months) at any one time.

(3) When any order is made under this Section by an officer mentioned in subsection (2), 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 so 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."

7. While this Court examines the validity of the order of preventive detention under Article 226 of the Constitution of India, this Court has to examine the decision making process. An order of preventive detention is an order of a very drastic nature. The result of passing an order of preventive detention is to deprive the detenu of his liberty without a trial. Therefore, the order of preventive detention cannot be passed in a casual and light hearted manner. Passing an order of preventive detention involves careful application of mind and recording subjective satisfaction on the basis of material on record that the grounds of detention provided by the statute exist. The recording of such subjective satisfaction by the Detaining Authority in the order of preventive detention is a sine qua non for passing a valid order of preventive detention. This Court while deciding the validity of the order of preventive detention cannot decide whether there was adequacy of material before the Detaining Authority. This Court can examine whether there was a material before the Detaining Authority and whether the Detaining authority has recorded a subjective satisfaction that grounds provided in the statute for passing an order of detention exist. Moreover, this Court has to examine whether vital documents which could have affected subjective satisfaction of the Detaining Authority in one way or the other were placed before the Detaining Authority. The other issue which is to be examined in such cases is whether the constitutional safeguards provided in Article 22 have been complied with.

8. Now, coming back to the facts of the case, it will be necessary to make a reference to the order of detention which reads thus :-

"Where as the Police Inspector, Satara City, Sub Divisional Police Officer, Satara and District Superintendent, Satara reported me, that Shri. Yuvraj Ramchandra Pawar, age 30 yrs R/o Old M.I.D.C. Satara, permanent resident of Satararoad, Taluka Koregaon Dist. :Satara, a very dangerous person, to the society as per the definition of dangerous person mentioned in the law.

And after gone through the reports and documents about him, I realized that the Satara City Police Station arrested him in so many cases and there were also preventive actions taken against him as per law but there was no any improvement in his behaviour.

Therefore, I am sure that, for the welfare and maintaining law & order in the society, there is only one remedy remain i.e. to detain Shri. Yuvraj Ramchandra Pawar as per the provisions of Section 3(2) of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act 1981.

Hence, I, the District Magistrate Satara in exercise of the powers conferred by SubSection (2), of Section 3 of the said Act read with Government order Home Dept. (Special) Mantralaya M.S. No.MPDA0513/ 100/Visha3B Dated 17/10/2013, hereby order that Shri. Yuvraj Ramchandra Pawar age 30 yrs R/o Old M.I.D.C. Satara, permanent resident of Satararoad, Taluka Koregaon Dist.:Satara, be detained for the period of 12 months from this order under this Act."

9. The first paragraph refers to the information furnished to the Detaining Authority by the Sponsoring Authority. The second paragraph contains factual statements that police had arrested the Petitioner in many cases and that there were preventive actions taken against him. It records that there is no improvement in his behaviour. The third paragraph records the so called subjective satisfaction of the Detaining Authority. Section 3 of the said Act does not confer a power to preventively detain a person for "welfare and maintaining law and order in the society". The power conferred on the Detaining Authority under the Section is to pass an order of preventive detention with a "view to prevent any person from acting in any manner prejudicial to the maintenance of public order". Thus, the order of detention shows that it is passed on a nonexisting ground. It does not record subjective satisfaction that any ground of detention provided in the said Act exists. It does not record a subjective satisfaction that it is necessary to detain the Petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order. Therefore, on a plain reading of the said order, it stands vitiated. From the detention order, it is apparent that the same is passed "for the welfare and maintaining law and order in the society" on the ground that notwithstanding earlier preventive actions against him, there is no improvement in the behaviour of the Petitioner. This shows complete nonapplication of mind on the part of the Detaining Authority. In the grounds of detention, the satisfaction recorded is as under :-

"10. .............................. I am subjectively satisfied that, in spite of preventive actions taken against you by the police there is no improvement in your criminal behaviour. You are repeatedly engaged in committing serious property offences. There is a question of public peace, tranquility, law & order arisen due to your criminal and dangerous behaviour. The public feels themselves insecure and unsafe due to your presence and terror. The criminal offences which are registered against you shows that you are a dangerous person to the society."

10. It seems that the Detaining Authority was not aware about the ground on which order of preventive detention under Section 3 could be passed.

11. In ground (e) of the grounds of challenge in the Petition, the contention raised is that though the Detaining Authority has relied upon incamera statements of two witnesses, there is no satisfaction recorded in the grounds that the Detaining Authority was satisfied about the truthfulness of the said statements. We have carefully perused the grounds of detention. In paragraph 5 thereof, there is a reference to contents of the in-camera statements of the two witnesses. There is no recital in the grounds that the Detaining Authority was satisfied about the truthfulness of the incamera statements. It will be interesting to note the response of the Detaining Authority in his affidavit-in-reply to ground (e). Paragraph 9 of the reply reads thus :-

"9. I say that with reference to as per ground 7(e) and (h) of the Writ Petition I deny that being a detaining authority have taken into consideration statement of two confidential witnesses without ensured about verification of the truthfulness of in camera statement. I further say that in the introductory paragraph of grounds of detention that the documents placed before me accept the names and identifying of the witness i.e. whose statement recorded in camera cannot be furnished to the detaining in the public interest, safety of the witnesses and for the same I claim privilege. Therefore the claim by the detaining in the present ground that my subjective satisfaction about the ensuring and truthfulness regarding in camera statement is false and as it is those statements clearly shows that the same are duly verified by the authority and which are relied by me and placed before me in the documents therefore my subjective satisfaction cannot be illegal according to law."

12. Perhaps the Detaining Authority has not understood the purport of ground (e). The Detaining Authority admitted that he has relied upon incamera statements but he has not stated even in the affidavit that he was satisfied about the truthfulness of the contents thereof. He has merely stated that the incamera statements were duly verified by the authority.

13. Another ground taken by the Petitioner is that the documents at page Nos.79, 81, 83, 84, 87, 123, 169 and 497 are not legible. The Detaining Authority has denied the same in the affidavit. On perusal of the compilation of documents furnished to the Petitioner, we find that the documents are really illegible. Another ground taken in the Petition is ground (i) regarding delay in passing the order. The material part of ground (i) reads thus :-

"i. The Petitioner says and submits that there is a gross delay of about eight months in passing the order of detention. The Petitioner submits that all the materials, documents and statements referred to and relied on, were available to the detaining authority by June 2013 whereas the impugned order of detention is passed belatedly on 02.12.2013 i.e. after about eight months. The detaining authority is called upon to explain to the satisfaction of this Hon'ble Court each stage of the proceeding from the date of proposal till the date of passing the order of detention. The order of detention will be held illegal and liable to be quashed, if no proper and valid explanation is tendered to this Hon'ble Court. The order of detention is illegal and bad in law, liable to be quashed and set aside."

14. It will be interesting to note the explanation given by the Detaining Authority to the said ground of delay in paragraph 11, which reads thus :-

"11. I state that with reference to Para. 7(i) of the Writ Petition that there was delay of 8 months for the passing order, but same defence also misguiding the Court of law. As per the Government policy the powers under the M.P.D.A. Act were given for a period of 3 months to District Magistrate and they are the subject to sanction. Powers are given to me by Government till 30th June 2013, thereafter I applied for powers and which were given on 19.10.2013 for a period of 17.10.2013 to 31.12.2013. I received proposal on 2.9.2013. At that time I did not have powers under M.P.D.A. Act and my powers are ceased to function. Therefore I could not take the matter for enquiry. During that period delay was not caused due to my personal default. Moreover after the receipt of powers on 19.10.2013, I required to verify genuineness of the reports, proposal, crime numbers, details of the crime, overall conduct of the accused/petitioner required to be tested with the police officers for that purpose I held deep and detailed judicial enquiry, moreover so as the Lordship very well known, the District Magistrate post is hot seat in the district, I have to perform simultaneously several official functions and duties, and this was not only one case for exhaust my all time. Even then by seeing seriousness, nature of crimes I responded promptly and passed order immediately as far as possible. There is no any my personal default for alleged delay. The calculation of delay period is also under the above factual matrix."

15. He has stated that though he received the proposal for passing an order of detention on 2nd September, 2013, he was conferred the powers under SubSection (2) of Section 3 of the said Act on 19th October, 2013. As noted earlier, the date of the order of the detention is 2nd December, 2013. In the affidavit, there is no explanation offered for the delay from 19th October, 2013 to 2nd December, 2013. In the summary of proceedings submitted by the learned Public Prosecutor, it is stated that letter dated 17th October, 2013 conferring powers was received by the Detaining Authority on 28th October, 2013. On 8th November, 2013, the Detaining Authority called the Superintendent of Police for discussion. On 12th November, 2013 the Detaining Authority acquainted himself with the facts of the case and kept the matter for passing the order. 16 days thereafter, on 28th November, 2013, the Detaining Authority dictated the order. It is true that the delay in passing the order of detention by itself is not fatal but surely the Detaining Authority was under an obligation to explain the same. In this case, there is no satisfactory explanation for the delay.

16. The impugned order of detention is rendered illegal on the first ground itself namely the failure to record subjective satisfaction about the existence of any of the grounds of detention provided in the said Act. Moreover, there is a complete nonapplication of mind on the part of the Detaining Authority.

17. There is a considerable merit in the submission made by the learned counsel appearing for the Petitioner that while exercising the power of confirmation/approval of the order of detention in accordance with Subsection (3) of Section 3 of the said Act, the State Government ought to have applied its mind to the order of detention. If the concerned officer of the State Government had carefully read the order, he may not have approved it at all. The confirmation or the approval to the orders of detention in accordance with SubSection (3) of Section 3 of the said Act is an additional safeguard introduced by the statute and, therefore, the power of grant of approval cannot be mechanically exercised in a casual manner. Grant of approval to the order of detention in accordance with SubSection (3) of Section 3 is not an empty formality. The Government must examine whether the order is lawful.

18. It will be necessary to make a reference to the affidavit of Shri Bajrang Digambar Umate, the Deputy Secretary of the Department of Home (Special), Government of Maharashtra. In paragraphs 2 and 3, he has stated thus :-

"2. I say that the Order of Detention passed by the District Magistrates and Commissioners of Police under the various Detention Laws are largely not confirmed by the Hon'ble Court either for the inherent defects in the order itself or for want of proper procedure. I say that it is essential that the Detention Orders passed by the District Magistrates and Commissioners of Police in no manner violate the constitutional guarantee envisaged under Article 21 and 22 of the Constitution of India. I say that the Orders passed in true spirit for the compliance of the legal parameters, are largely set aside.

3. I say that the State would call for the few orders from each District Magistrate and examine it in view of the various pronouncements of the Hon'ble High Court and Hon'ble Supreme Court on the subject issue, I say that the report would be drawn and the District Magistrates and Commissioners of Police would be enlightened on the prominent issues on which largely the order are set aside by the Higher Courts. This Department would also undertake the exercise of updating the District Magistrates and Commissioners of Police, strengthening the legal support and the legal assistance by issuing the circulars, notes, latest judgments pronounced by the Hon'ble High Court and the Hon'ble Supreme Court. I say that this exercise would take a period of at least 3 months to strengthen the legal framework of the District Magistrates and Commissioners of Police."

19. What is stated in the said paragraphs shows that the State Government has understood the necessity of ensuring that the District Magistrates and Commissioners who exercise the powers of the Detaining Authority do not commit illegalities while passing the orders of detention. We accept the statements made in the paragraph 3 of the reply. In paragraph 4, it is stated that the exercise of framing guidelines for approval of the orders of detention by the State Government under SubSection (3) of Section 3 will be undertaken and the guidelines would be framed within a period of three months. There is an assurance recorded in paragraph that besides framing guidelines, the Home Department would issue instructions for providing latest rulings and strengthening the legal back up by arranging seminars of the concerned officers who are passing orders of preventive detention.

20. In the present case, the Detaining Authority has expressed in the affidavit that he has several other duties to perform. That does not mean that the Detaining Authority can pass orders of detention casually which have the effect of depriving a liberty of a citizen guaranteed under the Constitution of India. As assured in the affidavit of Shri B.D. Umate, the State will have to take steps as indicated in paragraph 3 of the affidavit. The State will have to frame guidelines for passing orders of confirmation/approval in accordance with Sub-Section (3) of Section 3.

21. As far as the grant of compensation by taking recourse to public law remedy is concerned, the law is well settled right from the landmark judgment of the Apex Court in the case of Nilabati Behera. In paragraph 35 of the decision, the Apex Court has observed thus :-

"35.This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by called upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law - through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, it possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the courts have moulded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply and the courts have to act firmly but with certain amount of circumspection and selfrestraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law. Some of those situations have been identified by this Court in the cases referred to by Brother Verma, J."

22. It is true that the impugned order of detention is illegal. It is true that this is a case where there is a nonapplication of mind by the Detaining Authority. As we have observed earlier, a person cannot be deprived of his liberty in such casual manner, more so in the case of preventive detention where the liberty is taken away without conducting a trial. The question is whether the Petitioner is entitled to compensation by invoking public law remedy.

23. The Petitioner has not placed on record any material to show that he was regularly employed in Tata Technologies and that he lost his employment due to his detention. He has not placed on record his educational qualifications. Moreover, from the material on record and the affidavit of Detaining Authority, it cannot be said that the Detaining Authority has acted in a malafide manner. In our view, considering all the relevant facts, this is not a case where compensation can be granted in a public law remedy. However, considering the facts of the case and especially the order dated 18th January, 2014 passed by the State Government under SubSection (1) of Section 12 of the said Act, this is a fit case where the Petitioner will have to be granted costs of this Petition. The State Government accepted opinion of the Advisory Board that there was no sufficient cause for detention of the Petitioner. In the present case, we quantify the costs at Rs.10,000/-.

24. We make it clear that this Judgment and Order should not be understood to mean that in every case where the order of preventive detention is found to be illegal or is revoked by the State Government on the basis of the opinion of the Advisory Board that the detenu is entitled to compensation or costs. The exercise of discretionary power to grant compensation in public law remedy depends on facts of each case.

25. Hence, we dispose of the Petition by passing the following order :-

ORDER

(i) The State Government shall comply with the assurances recorded in the affidavit of Shri Bajrang Digambar Umate and in particular paragraphs 4 and 5 thereof within a period of two months from today. The affidavit of compliances shall be filed on or before 1st December, 2014;

(ii) We hold that the impugned order of detention is illegal;

(iii) We direct the Respondents to pay costs to the Petitioner quantified at Rs.10,000/-within a period of four weeks from today;

(iv) Rule is partly made absolute on above terms;

(v) For reporting compliance, Petition shall be listed on daily board on 3rd December, 2014 under the caption of "Directions".

Ordered accordingly.