Smt. Sharadbhai Shankar More vs Shri M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 637 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes herself as mother of the detenu - Anil Shankar More has impugned the order dated 19th February, 2001 passed by the First Respondent Mr. M.N. Singh, Commissioner of Police, Greater Bombay detaining the detenu 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).

2. The detention order along with the grounds of detention, which are also dated 19th February, 2001, was served on the detenu on 21st February, 2001 and their true copies are annexed as Exhibits A and B respectively to this writ petition.

3. A perusal of the grounds of detention would show that the impugned detention order is founded on one C.R. namely C.R. No. 78 of 2000 under Sections 387, 506 and 34 of the I.P.C. registered on the basis of a complaint dated 12.8.2000 lodged by Liyakatali Sufajjal Mandal at Wadala police station against the detenu and his associates and in camera statements of two witnesses namely A and B which were recorded on 6th October, 2000 and 7th October, 2000 respectively.

4. We have heard learned Counsel for the parties. Although in this writ petition, Mr. U.N. Tripathi learned Counsel for the petitioner has pleaded a large number of grounds, numbered from grounds Nos. 8(A) to 8(D) but, since in our judgment, this writ petition deserves to succeed on a solitary ground, namely that pleaded as ground No. 8(A), we are not adverting to the other grounds of challenge raised in the petition.

5. Ground No. 8(A) in substance is that between the last prejudicial activity contained in the in camera statement of witness B, which was recorded on 7th October, 2000 and the date on which the impugned detention order was passed i.e. on 19th February, 2001, there was an inordinate time - gap of nearly 4½ months which severed the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him. It has also been pleaded in ground No. 8(A) that the Detaining Authority be called upon to disclose and explain to this Court as to why there was the aforesaid delay in the issuance of the impugned detention order.

6. Ground No. 8(A) has been replied to in para 8 of the return of the Detaining Authority and in paras 2 to 5 of the return of Mr. T.L. Patil, Inspector of Police attached to the Prevention of Crime Branch, Criminal Investigation Department, P.C.B., C.I.D., Mumbai.

7. We now propose extracting the substance of the reply contained in the said two returns.

We begin with para 8 of the return of the Detaining Authority.

In short, he has stated therein as under:

The in camera statement (of witness B) was recorded on 7th October, 2000. Thereafter, on 10th October, 2000 the proposal to detain the detenu along with accompanying papers was submitted by the Senior Inspector of Police, Wadala Police Station, Bombay to the Deputy Commissioner of Police, Port Zone, Bombay who went through the papers and gave his endorsement on 12th October, 2000 and forwarded the papers to the Additional Commissioner of Police, South Region, Bombay, who went through the papers and gave his endorsement on 16th October, 2000 and forwarded the papers to the Senior Police Inspector, P.C.B., C.I.D., Bombay who went through them and gave his endorsement on 21st October, 2000. Thereafter the papers were forwarded to the Deputy Commissioner of police (Preventive) Bombay who went through them and gave his endorsement on 27th October, 2000 and forwarded the papers to the Assistant Commissioner of Police, Crime who went through them and gave his endorsement on 31st October, 2000 on which date he forwarded the papers to the Joint Commissioner of Police (Crime) who went through them and gave his endorsement on 4th November, 2000.

On 4th November, 2000, the file was put up before the Detaining Authority who gave his endorsement on 12th January, 2001.

Why it took the Detaining Authority two months and eight days to accord his approval has been explained in terms that in between 6th November, 2000 and 11th January, 2001, there were a large number of ready detention matters as well as fresh detention proposals before him and in the said period, a number of detention orders were issued by him. It has also been averred that in the said period, there were 16 holidays namely on 5th November, 2000, 11th November, 2000, 12th November, 2000, 19th November, 2000, 25th November, 2000, 26th November, 2000, 3rd December, 2000, 9th December, 2000, 10th December, 2000, 17th December, 2000, 23rd December, 2000, 24th December, 2000, 25th December, 2000, 28th December, 2000, 31st December, 2000 and 7th January, 2001.

It has also been averred by the Detaining Authority that on 25th December, 2000 and 28th December, 2000 respectively, there were Christmas and Ramzan festivals and he was busy monitoring the situation to ensure that the areas were peaceful.

On 12th January, 2001, the Detaining Authority gave his endorsement to the proposal and thereafter, the papers were forwarded to the Sponsoring Authority for fair typing, translation of documents in the language known to the detenu and for preparation of necessary set of documents and the Sponsoring Authority after completing the aforesaid work sent the papers to the office of the Senior Inspector of Police, P.C.B., C.I.D., who after checking them placed them before the Additional Commissioner of Police, (Crime), Bombay vide endorsement dated 31st January, 2001.

Explaining the delay between 12th January, 2001 and 31st January, 2001, the Detaining Authority has stated that in the said period, there were six holidays namely on 13th January, 2001, 14th January, 2001, 21st January, 2001, 26th January, 2001, 27th January, 2001 and 28th January, 2001.

The Additional Commissioner of Police, put his endorsement on the papers on 1st February, 2001 and submitted the papers to him (Detaining Authority) and the papers were placed before him on 19th February, 2001 on which date, he passed the impugned detention order.

The delay of 18 days between 1st February, 2001 and 19th February, 2001 has been sought to be explained by the Detaining Authority by stating that there were four holidays in the said period i.e. on 4th February 2001, 10th February 2001, 11th February 2001 and 18th February 2001.

At the end of para 8, the Detaining Authority has stated that looking to the propensity and potentiality of the delenu to indulge in similar activities in future, it cannot be said that the live link was snapped and the incidents had become stale.

8. We now come to the averments contained in paras 2, 3, 4 and 5 of the affidavit of Mr. T.L. Patil, Inspector of Police, attached to Prevention of Crime Branch, Criminal Investigation Department, P.C.B., C.I.D., Bombay. In the said paras he has filled in some lacunae which are in para 8 of the affidavit of the Detaining Authority.

We make no bones in observing that since some lacunae in para 8 of the affidavit of the Detaining Authority were sought to be filled in, the more appropriate course would have been that the Detaining Authority should have filed an additional affidavit, instead of Mr. T.L. Patil filing an affidavit.

In short, the reply contained in para 2 of Inspector Mr. Patil's affidavit is that in between 6th November, 2000 to 11th January, 2001, there were many detention matters pending approval of the Commissioner of Police, Brihan Mumbai and many ready detention matters were also required to be placed for consideration of the Commissioner of Police, Brihan Mumbai and the said matters had been received prior to the present matter. It has further been averred that 49 fresh proposals were received for approval and 53 detention orders were issued by the Commissioner of Police, Bombay. It has also been averred that between 1st December, 2000 to 11th January, 2001, 36 detention matters were approved by the Commissioner of Police.

An endeavour has also been made to explain the delay between 12th January, 2001 and 19th February 2001, the date on which the impugned detention order was passed. It is been stated that 13th January, 2001 and 14th January, 2001 were holidays and the papers were forwarded to the Sponsoring Authority for purpose of fair typing, translation of documents in the language known to the detenu and for preparation of necessary documents etc. on 15th January, 2001 an after completion of the said work, the papers were received in the office of the Senior Inspector of Police, P.C.B., C.I.D., Bombay on 29th January, 2001, who after checking them gave his endorsement on 31st January, 2001.

It has been averred that between 2nd February, 2001 and 18th February, 2001, there were a large number of ready detention matters and fresh detention proposals before the Detaining Authority who during the said period issued nine detention orders. It has further been averred that 4th February. 2001, 10th February, 2001, 11th February, 2001 and 18th February, 2001 were holidays and thereafter on 19th February, 2001, the papers were forwarded to the Detaining Authority who issued the impugned detention order the same day.

Finally, it has been averred that looking to the propensity and potentiality of the detenu to indulge in similar activities in future, it cannot be said that the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has been snapped.

9. We have perused the averments contained in ground No. 8(A) of the petition and those contained in para 8 of the return of the Detaining Authority and paras 2, 3, 4 and 5 of the return of Mr. T.L. Patil, Inspector of Police, attached to Prevention of Crime Branch, Criminal Investigation Department, P.C.B., C.I.D., Bombay. We have also heard learned Counsel for the parties. We are constrained to observe that in our judgment, the delay in the Issuance of the impugned detention order has not been satisfactorily explained and there is merit in ground 8A.

10. It is a trite that delay ipso facto in the issuance of the detention order does not vitiate a detention order and the same is only vitiated if no satisfactory explanation for the delay has been furnished. The proposition is far too well-settled to warrant a reference to authorities but, since reference to and reverence of authorities has become the order of the day, we do not want to deviate and the authority which most readily comes in our minds is the decision of the Supreme Court rendered in the case of Hemlata Kanttlal Shah v. State of Maharashtra , wherein at page 13 the Supreme Court has observed thus:

Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases, delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the Detaining Authority.

We make no bones in observing that in the instant case, the delay has not been satisfactorily explained,

11. We now propose referring to the two returns filed on behalf of the respondents wherein an endeavour has been made by them to explain the delay.

We begin with the return of the Detaining Authority wherein the delay in the issuance of the detention order has been sought to be explained in para 8. Earlier, we have referred to in detail the explanation furnished in said para and do not want to burden our judgment by reiterating all the aforesaid details.

We have no reservations in observing that in three pockets, the delay has not been satisfactorily explained and they are:

(a) 4th November, 2000 to 12th January, 2001;

(b) 12th January, 2001 to 31st. January, 2001;

(c) 31st January, 2001 to 19th February, 2001.

12. We would first like to take up pocket (a) i.e. the delay between 4th November, 2000 to 12th January. 2001.

The Detaining Authority has offered a three-fold explanation namely:

(i) a large number of detention matters and fresh detention proposals were pending before him; (ii) he issued a number of detention orders; and ( iii) there were 16 holidays.

We are constrained to observe that the averment that a large number of reedy detention matters and fresh detention proposals were pending before the Detaining Authority and in the said period, he issued a number of detention orders is blissfully vague. In our judgment, the Detaining Authority should have specified the actual numbers because, what is large is a matter of individual perception.

Apart from it, the Detaining Authority should have also specified whether the detention orders cleared by him were prior to the proposal submitted to detain the detenu but, this has not been stated by him in his affidavit. If they had been received prior to the detenu's proposal then, we could have taken the view that the Detaining Authority was justified in first attending to them.

It should be borne in mind that preventive detention matters are decided on the basis of averments contained in affidavits and we have no reservation in observing that where the averments in the affidavit are blissfully vague, as is the case here, we would have no compunction in not accepting them and the explanation based on them.

For the said reasons, Explanation (i) and (ii) does not merit our acceptance. In our view, even if the sixteen holidays are excluded, there is nearly a delay of two months in the first pocket which has not been satisfactorily explained.

13. We now come to pocket No. (b) namely the period between 12th January, 2001 to 31st January, 2001.

The Detaining Authority has sought to explain this delay of 19 days by averring that there were six holidays namely on 31st January, 2001, 14th January, 2001, 21st January, 2001, 26th January, 2001, 27th January, 2001 and 28th January, 2001. Even if the said holidays are excluded, there remains a delay of 13 days. In our judgment, since the impugned order was based on one C.R. and two in camera statements and the list of documents, which is at pages 25 and 26 of the petition, shows that in all 26 documents were forwarded by the Sponsoring Authority to the Detaining Authority, this period of 13 days was far too long for the sponsoring authority to get fair typing, translation of documents in a language known to the detenu and preparation of necessary set of documents etc. done. We are of the judgment that there has been some laxity on the part of the Sponsoring Authority in getting the aforesaid work done and the Sponsoring Authority was oblivious to the promptitude with which a preventive detention matter had to be dealt with.

14. We now come to pocket (c) namely the delay between 31st January, 2001 to 19th February, 2001.

It is pertinent to mention that the Detaining Authority has averred in his affidavit that the Additional Commissioner of Police Bombay put his endorsement on the papers on 1st February, 2001 and thereafter, submitted them to him and he passed the impugned order on 19th February, 2001. He sought to explain the delay between 1st February, 2001 to 19th February, 2001 by averring that 4th February, 2001, 10th February, 2001, 11th February, 2001 and 18th February, 2001 were holidays. Even if the aforesaid four holidays are excluded, in our judgment, the Detaining Authority took far too much time to pass the impugned order. It should be borne in mind that by 1st February, 2001, the entire file had been processed, necessary sets of documents etc. had been prepared and all what the Detaining Authority had to do was to pass the detention order and finalize the grounds of detention. Hardly an hour or so was required for this. We are sure he could have spared this time.

15. We now come to the affidavit filed by Mr. T.L. Patil, Inspector of Police, Prevention of Crime Branch, Criminal Investigation Department, P.C.B., C.I.D., Bombay.

We have earlier mentioned that the said affidavit was filed to cure some lacunas in the affidavit of the Detaining Authority. We have also earlier stated that if there were lacunae in the affidavit of the Detaining Authority, he himself should have filed an additional affidavit and instead Inspector T.L. Patil should not have filed one.

Earlier, we have referred to the explanation for the delay in the issuance of the order contained in para 2 of the return of Inspector Mr. T.L. Patil and do not want to burden our judgment by reiterating the said details but, we would candidly like to point out how lacunas appearing in the affidavit of the Detaining Authority have been sought to be filled in by Inspector Patil in his affidavit.

In the affidavit filed by the Detaining Authority, there is no mention about the number of proposals which were pending for consideration and issuance of detention order, during the period 6th November, 2000 to 11th January, 2001. Again, there is no averment in the affidavit of the Detaining Authority that the said matters had been received prior to the present matter. Further, the Detaining Authority in his affidavit has not mentioned the number of ready detention matters which were before him during the period 2nd February, 2001 to 18th February, 2001. But, we find that all these lacunas have been filled in, in the affidavit of Inspector Patil.

16. We make no bones in observing that where there is a lacunae in the return filed by a certain functionary and that lacunae is sought to be subsequently filled in, then the proper affidavit to be filed as of the functionary in whose affidavit there are lacunas, unless, the said functionary for some unavoidable reasons, is not available (which is not the case here). In our judgment, the lacunae appearing in the affidavit of the Detaining Authority should have been filled in, in a second affidavit filed by the Detaining Authority and not in one filed by Inspector Patil.

In our judgment the explanation furnished in the return of Inspector Patil is an after-thought and does not merit acceptance.

We are amused to find that in the verification clause of the affidavit filed by Inspector Patil, the affirmation has been in terms that whatever has been stated in the affidavit is true to his own knowledge and information derived from the record which he believed to be true. We are at our wit's end to understand as to how Inspector Patil could have personal knowledge regarding the number of proposals pending before the Detaining Authority, the fresh proposals pending before him and the number of detention orders issued by him.

17. For the said reasons in our judgment no value can be attached to the explanation contained in the affidavit of Inspector Patil.

18. Hence, in our judgment, the impugned detention order is vitiated by the vice of delay in its issuance.

We feel it pertinent to mention that the Supreme Court in the oft-quoted ease of Pradeep Nilkanth Paturkar v. Shri S. Ramamurthi and Ors. , in para 14 has held that the unexplained delay in the issuance of the detention order whether short or long when the appellant has taken a specific plea of delay would be adequate ground to quash the detention order on the vice of delay in its issuance.

19. We would be failing in our fairness if before parting with the judgment, we do not refer to a averment made in both the returns, namely that looking to the propensity and potentiality of the detenu to indulge in similar activities in future, it cannot be said that the live link between his prejudicial activities and the rationale of clamping a detention order on him has been snapped.

Mr. B.R. Patil, Acting Public Prosecutor for the respondents, submitted that since the live link has not been snapped, the impugned detention order would not be vitiated on the vice of delay in its issuance simplicitor.

20. The question whether in view of the propensity and potentiality of the detenu, the live link or the nexus between his prejudicial activities and the necessity of clamping a detention order on him has been severed or not is a question of fact and not one of law and the answer to the said question would depend on the facts of a given case.

In this case, we find that the impugned order is based on one C.R., which was registered on 12th August, 2000 and two in camera statements, namely of witnesses A and B wherein the prejudicial activities attributed to the detenu are said to have been committed by him in the last week of August, 2000 and the first week of September, 2000 respectively. The grounds of detention do not show that the detenu committed any prejudicial activity after the first week of September, 2000.

In such a factual matrix, in our judgment, it cannot be concluded with certainty that the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has not been snapped.

21. We may also mention that in Pradeep Paturkar's case (supra), the impugned detention order was founded on five cases under the Bombay Prohibition Act, the last of which was registered 5 months and 8 days before it was passed and in camera statements of live witnesses namely A, B, C, D and E. Inspite of that, the Supreme Court did not sustain the detention order on the ground of propensity and potentiality. It made no bones in observing in para 14 that if the delay whether short or long is not satisfactorily explained, then the detention order would be vitiated on the vice of delay.

22. In the ultimate analysis, the answer to the question, whether a detention order which has been issued after an inordinate delay should be quashed on being vitiated by the vice of delay would primarily depend on whether the delay has been satisfactorily explained and not on propensity and potentiality of the detenu simplicitor.

23. For the said reasons, we allow this writ petition; quash and set aside the impugned detention order; direct that the detenu Anil Shankar More be released forthwith if not wanted in some other case; and make the rule absolute.