Bombay High Court
Jahidali Vahhidali Khan @ Javed ... vs M.N. Singh, Commissioner Of ... on 19 December, 2001
Equivalent citations: 2002 (2) MhLj 283
Author: V Sahai
Bench: V Sahai, S Shah
JUDGMENT
Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner detenu Jahidali Vahidali Khan @ Javed Khan, has impugned the order dated 31st August, 2001 passed by the first respondent Mr. M.N. Singh, Commissioner of Police, Brihan Mumbai, detaining him 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. IV of 1981) (hereinafter referred to as the MPDA Act).
The detention order along with the grounds of detention which are also dated 31st August, 2001 was served on the petitioner-detenu on 3rd September, 2001 and their true copies are annexed as annexures 'A' and 'B' respectively, to this petition.
2. A perusal of the grounds of detention (annexure 'B') would show that the impugned order is founded on two CR's, namely CR No. 37/2001 under Sections 427, 506(ii) of the Indian Penal Code, registered on the basis of a complaint dated 31-1-2000 lodged by Balkrishna Shetty at Wadala Police Station and CR No. 151 of 2001 under Section 387 of the Indian Penal Code, registered at Wadala Police Station, on the basis of a complaint which was also lodged by Balkrishna Anttaya Shetty on 26-2-2001 and in camera statements of two witnesses, namely, 'A and 4B' which were recorded on 3-8-2001 and 4-8-2001 respectively.
Since in our view, a reference to the prejudicial activities of the petitioner detenu contained in the said CR's and in-camera statements, is not necessary for adjudication of ground 6(c), pleaded in the petition, on which ground alone, in our judgment, this petition deserves to succeed, we are not adverting to them.
3. Ground 6(c), in short, is that one of the grounds of detention which is contained in paragraph 5(a)(i) of the grounds of detention is CR No. 37 of 2001 and accepting the FIR pertaining to the said CR, no other relevant and vital documents pertaining to it were furnished to the detenu, resulting in his fundamental right of making an effective representation, guaranteed by Article 22(5) of the Constitution of India, being impaired.
4. Ground 6(c) has been replied to in paragraph 11 of the return of the
detaining authority. In short, the reply therein is as under:--
Paragraph 5(a)(i) of the grounds of detention (CR 37/2001) has been referred to and relied upon for the purpose of showing the criminal history of the detenu and, therefore only copy of the FIR of CR 37/2001 was furnished to the detenu. The detention order is based on the grounds contained in para 5 of the grounds of detention. It is legal, valid and proper.
In paragraph 11, the detaining authority has denied that his subjective satisfaction
is vitiated on account of non-placement of vital documents and on account of
non-furnishing of their copies to the detenu.
5. We have considered the averments contained in the ground 6(c) of the petition, those contained in paragraph 11 of the return of the detaining authority, wherein said ground has been replied to and heard the learned counsel for the parties. We make no bones in observing that we find merit in ground 6(c).
6. A perusal of paragraph 1 of the grounds of detention would show that the detaining authority has averred therein, as follows :--
I, hereby communicate to you, the grounds as mentioned in paragraph 5 below on which a detention order has been made by me, on this day, against you under Sub-section (1) of Section 3 of the said Act........
The aforesaid averment contained in paragraph 1 of the grounds of detention would make it manifest that the grounds are contained in paragraph 5. In this view of the matter, the ground referred in paragraph 5(3)(i) on the basis of which
CR 37 of 2001, referred to above, was registered against the detenu, is a ground of detention, and once we hold that it is a ground of detention, the detaining authority cannot escape from the logical imperative that it was incumbent upon him, not only to supply to the detenu copy of the FIR pertaining to the said CR, which he did, but also to supply to him all other documents relevant to the said CR because they were necessary for the detenu to make an effective and purposeful representation in furtherance of his fundamental right, guaranteed to him by Article 22(5) of the Constitution of India.
7. Since documents, other than the FIR of CR No. 37/2001, which were of vital importance, were, admittedly not supplied to the detenu the grievance pleaded in ground 6(c) referred to above, in our judgment, has substance. In our judgment, on account of failure of the detaining authority to supply to the detenu. The said documents, the detenu's fundamental right of making an effective representation, guaranteed to him by Article 22(5) of the Constitution of India, was impaired.
8. In the result : We allow this writ petition; quash and set aside the impugned detention order; direct that the detenu Jahidali Vahidali Khan @ Javed Khan be released forthwith unless wanted in some other case; and make the rule absolute.
