Smt. Sabina Shaikh vs Shri M. N. Singh, Commissioner Of ...
2001 Latest Caselaw 150 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner who styles herself as the wife of the detenu Mohd. Siraj Jainul Abedin Shaikh, has impugned the detention order dated 19th September, 2000 passed by the 1st Respondent Mr. M. N. Singh, Commissioner of Police, Brihan Mumbai, detaining the detenu under subsection 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).

The detention order along with the grounds of detention which are also dated 19th September, 2000 was served on the detenu on 20th September, 2000 and their true copies are annexed as Annexures A and B respectively to this petition.

2. The prejudicial activities of the detenu prompting the 1st Respondent to issue the impugned order are contained in the grounds of detention (Annexure 'B'). Their perusal shows that the impugned order is founded on one C.R. viz. C. R. No. 265/2000 under Sections 307, 324. 506(11), 141, 142, 143, 147. 148 and 149 of the I.P.C. read with Sections 3, 25 and 27 of the Arms Act, registered at Vakola Police Station on the basis of a complaint dated 20th May, 2000 filed by one Mohd. Saale Khan and in-camera statements of two witnesses viz. A and B, which were recorded on 26th May, 2000.

3. We have heard learned Counsel for the parties. Although Mr. U. N. Tripathi, learned counsel for the Petitioner has pleaded In this petition a large number of grounds running from ground 6(A) to 6(G) but he has only pressed before us two grounds viz. those pleaded as ground Nos. 6(E) and 6(D).

4. We propose to consider each of the said grounds.

Ground 6(E) in substance is that although the last in-camera statement was recorded on 26th May, 2000 the detention order was passed after a gap of nearly four months viz. on 19th September, 2000 and on account of the said delay the nexus between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has snapped and the detention order has ceased to be preventive, as it should be in law but instead has become punitive.

5. Ground 6(E) has been replied to In two returns viz. paras 12 to 19 of the return of the Detaining Authority and in para 3 of the return of Mr. D. D. Daware, the Police Sub-Inspector attached to Vakola Police Station. Mumbai, the Sponsoring Authority.

In para 12 the Detaining Authority has candidly asserted that the delay in Issuance of the detention order has been explained and the nexus between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has not been served. In paragraphs 12 to 19 the Detaining Authority has explained the delay in the Issuance of the detention order as under :

(I) The Incident pertaining to C.R. No. 265 of 2000 occurred on 20th May, 2000 and the in-camera statements of witnesses were recorded on 26th May, 2000;

(ii) The proposal for detaining the detenu was submitted on 30th May, 2000 by the Sponsoring Authority to the Deputy Commissioner of Police (Zone VI11) after preparing the necessary sets of documents by getting them typed, xeroxed etc.

(iii) The Deputy Commissioner of Police (Zone VIII) went through the papers and put his endorsement on 31st May, 2000;

(iv) On 1st June, 2000 the papers were forwarded to the Additional Commissioner of Police (Central Region), who went through them and gave his endorsement on 1st June, 2000. Since on 15th June there was Id hence during the previous few days the Additional Commissioner of Police (Central Region) was busy with discussions relating to bandobast

arrangement and in between 1st June, 2000 and 15th June, 2000 there were many fresh detention matters, including the present one before him and 4th June, 2000 and 11th June, 2000 were holidays.

v) The proposal was forwarded to P.C.B.. C.I.D. who put his endorsement on 21.6.2000, 18.6.2000 being a holiday. Between 16.6.2000 and 20.6.2000. including the present proposals, there were a large number of other proposals before the Senior Inspector P.C.B., C.I.D.

(vi) On 26.6.2000 after carefully going through the papers the Deputy Commissioner of Police gave his endorsement in between 22.6.2000 and 26.6.2000 there were many proposals before the Deputy Commissioner of Police and 25.6.2000 was a holiday.

(vii) On 29.6.2000 the Deputy Commissioner of Police (Crime) to whom the papers were forwarded gave his endorsement and forwarded the papers to the Detaining Authority.

(viii) On 30.6.2000 all the papers were produced before the Detaining Authority who after carefully perusing them gave opinion on 21.7.2000 that it was a fit case for detention in between 2.7.2000, 9.7.2000 and 16.7.2000 were holidays.

(ix) On 22.7.2000 the papers were forwarded to the Sponsoring Authority for fair typing, preparing the translation of the documents and for preparing necessary set of documents. After completion of the said work the papers were received, as per the procedure, in the office of Senior Inspector of Police, D.C.B., C.I.D., on 5.9.2000.

(x) On 6.9.2000 after checking all the documents and making his endorsement the Senior Inspector of Police, D.C.B., C.I.D., Mumbai, forwarded the papers to the Additional Commissioner of Police (Crime).

(xi) On 7.9.2000 the Additional Commissioner of Police (Crime) went through the papers and after putting his endorsement forwarded them to the Detaining Authority.

(xii) On 8.9.2000 the papers were received by the Detaining Authority who on 19.9.2000 after going through the papers passed the impugned detention order, 10.9.2000 and 17.9.2000 were holidays and many proposals pending were before the Detaining Authority between 8.9.2000 and 19.9.2000.

6. We now take up the reply to the said ground contained in paras 3 to 19 of the return of Mr. D. D. Daware, the Police Sub-Inspector attached to Vakola Police Station, Mumbai, the Sponsoring Authority. In paras 3 and 4 Mr. Daware has stated that the incident forming the subject matter of C. R. No. 265/2000 took place on 20.5.2000 and the in-camera statements were recorded in 26.5.2000. In paras 5 and 6 it has been stated that after carefully going through the documents and getting them xeroxed etc. he sent the proposal for detention of the detenu to the Senior Inspector of Police attached to Vakola Police Station, Mumbai, on 29.6.2000 and the latter went through the papers and submitted the proposal to the Deputy Commissioner of Police on 30.5.2000. In paras 7 and 8 it has been mentioned that the papers were examined by the Additional Commissioner of Police (Crime) on 29.6.2000 and put before the Detaining Authority and the latter on 21.7.2000, after going through them opined that it was a fit case for detention of the detenu. Thereafter on 22.7.2000 the papers were forwarded to the Sponsoring Authority i.e.

Senior Inspector of Police, Vakola Police Station for fair typing, translation of documents inalanguage known to the detenu etc. In para 9 it has been mentioned that after translation of the documents, fair typing etc., had been completed on 5.9.2000 the proposal was sent to the Senior Inspector of Police, .P.C.B., C.I.D. It has also been mentioned therein that the translations were made in Hindi language through police staff and 23.7.2000, 6.8.2000, 13.8.2000, 20.8.2000. 27.8.2000 and 3.9.2000 were holidays. In para 10 it has been mentioned that between 20.7.2000 and 4.8.2000 the situation in the entire State of Maharashtra was very tense on account of the question whether a prominent political personality should be arrested and all the police personnel were on alert and busy with police bandobast (When counsel for the Petitioner complained that the name of the said personality had not been disclosed the learned Public Prosecutor categorically stated that he was Balasaheb Thackrey). In para 11 it has been stated that on 28.7.2000 a big gang of dacoits was arrested and hence for the next couple of days most of the staff of Vakola Police Station, including the deponent, was busy with the interrogation of the dacoits and the investigation of the case. In para 12 it has been averred that 15.8.2000 was Independence day and that day and the previous 10 days preceding it. the staff of Vakola Police Station, including the staff of externment branch, were busy with bandobast arrangements. In para 14 it has been averred that apart from the present detention proposal there were three other detention proposals with which the deponent was seized and in connection with which he was busy. In para 15 it has been averred that on 1.9.2000 there was Ganesh Utsav and a couple of days prior thereto most of the staff of Vakola Police Station, including the externment branch, was busy with meetings relating to bandobast arrangements. In paras 16 and 17 it has been averred that the deponent after taking the papers and the translated documents could finish the work only on 5.9.2000. In para 18 it has been mentioned that the deponent submitted the papers to the Detaining Authority who after going through them on 19.9.2000 passed the impugned detention order. Finally in para 19 it has been urged that in the said circumstances 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 and the incidents had become stale.

7. We have examined ground 6(E) of the Petition, the averments contained in paras 12 to 19 of the reply of the Detaining Authority and those contained in paras 3 to 19 of the return of the Sponsoring Authority. We are constrained observed that we do not find any merit in ground 6(E).

8. In the first place it should be borne in mind that it is not delay simplicitor in the issuance of a detention order which vitiates it. A detention order is only vitiated on vice of delay in its issuance if there is no satisfactory explanation for the same. Our view is founded on the oft-quoted decision of the Supreme Court in Hemlata Kantilal Shah v. State of Maharashtra. In our view a perusal of paras 12 to 19 of the return of the Detaining Authority and paras 3 to 19 of the return of the Sponsoring Authority satisfactorily explain the delay in the issuance of the detention

order. We have already extensively spelt out the said explanation and to eschew prolixity we do not want to reiterate the same.

9. For the said reasons ground 6(E) fails.

10. We now come to the second ground pressed by Mr. Tripathi, learned counsel for the petitioner viz. ground 6(D). The said ground in short is that on 7th December, 2000 a representation of the detenu was forwarded by his wife (Petitioner) to the State Government for consideration and revocation of the detention order and the Petitioner has not received any communication from the State Government informing her about the fate of the said representation. It has been averred in the said ground that a representation forwarded to any Competent Authority should be considered by the same expeditiously and hence the continued detention of the detenu is bad in law. A true copy of the said representation is annexed as Annexure "D" to the Petition.

11. Ground 6(D) has been replied to in para two of the return of Mr. M. B. Khopkar, Desk Officer, Home Department (Spl.). Mantralaya, Mumbai. In the said paragraph Mr. Khopkar has categorically asserted that the representation dated 7th December, 2000, supposedly forwarded by the wife of the detenu to the State Government has not been received so far by the Desk Officer, Home Department (Spl.), Mantralaya, Mumbai and consequently there was no question of consideration of the said representation.

12. We have examined the averments in ground 6(D) and those contained in para 2 of the return of Mr. Khopkar. We are constrained to observe that we do not find any merit in ground 6[D) also.

13. We would like to point out that in para 8 of the grounds of detention the Detaining Authority has categorically mentioned that should the detenu wish to make a representation he should address it to the Secretary to the Government of Maharashtra (Preventive Detention). Home Department (Special), Mantralaya, Mumbai 400032. In the instant case we find that the representation which was made on behalf of the detenu by the Petitioner (detenu's wife) was not sent to the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Manlralaya, Mumbai 400 032, as it should have been done in view of para 8 of the grounds of detention, but instead was sent to the Deputy Chief Minister and Home Minister, Home Department (Special). Mantralaya, Mumbai.

14. In our view, when para 8 of the grounds of detention made it explicit that the representation should have been addressed to the Secretary to the Government of Maharashtra (Preventive Detention), Home Department (Special), Mantralaya, Mumbai 400032, the said representation should have been sent to the said functionary and not to the Hon'ble Deputy Chief Minister and Home Minister, Home Department (Special), Mantralaya, Mumbai.

It is well settled that the law would not allow a person to take advantage of his own wrong. In such a situation the detenu can make no grievance that his representation was not considered by the Hon'ble Deputy Chief Minister and Home Minister.

15. As a matter of fact since the representation was sent to Hon'ble Deputy Chief Minister and Home Minister, Home Department (Special),

Mantralaya, Mumbai, and not to the Secretary to the Government of Maharashtra (Preventive Detention). Home Department (Special). Mantralaya, Mumbai 400 032, we do not have an iota of doubt that the averments made in para 2 of the affidavit of Mr. M. B. Khopkar, that the representation made by the wife of the detenu to the State Government has not been received so far by the concerned Desk Officer in the Home Department and hence the question of its consideration does not arise, are correct.

16. Before recording that ground 6(D) is without substance, we would like to refer to the decision of the Supreme Court in Raverdy Marc Germain Jules v. State of Maharashtra and Ors. cited by Mr. Tripathi. Mr. Tripathi invited our attention to para 7 of the said decision. He urged thataperusal of the said paragraph shows that the Detaining Authority was the Secretary to the Government of Maharashtra, Home Department, but the representation instead was rejected by the Home Minister. Mr. Tripathi urged that the Hon'ble Supreme Court held that since under the rules of business the Home Department was competent to examine the represen-tation and reject the same it was futile to contend that, that the representation was not considered by the Detaining Authority.

By virtue of the reasoning contained in para 7 of the aforesaid decision Mr. Tripathi urged that since the Hon'ble Deputy Chief Minister and Home Minister was also competent to consider the representation, the said representation could have been sent to him.

17. For two reasons the said authority does not ensure to the advantage of the detenu, firstly because as stated in para 2 of the return of Mr. M. B. Khopkar, the said representation was not received by the State Government and if it was not received by him there was no question of its consideration even by the Hon'ble Deputy Chief Minister and Home Minister. Secondly in our view the said decision no-where lays down the ratio that even if a representation is sent to a functionary other than that mentioned in the grounds of detention the said functionary (Hon'ble Deputy Chief Minister and Home Minister in the instant case). Is under an obligation to consider it. All what It lays down is that if the functionary to whom it is sent is competent to consider it and considers it therefore is no infirmity in law.

We may also mention that we have examined the language of the said representation. It betrays that it has been drafted by a legal mind, well versed with preventive detention law. We are constrained to observe that with oblique and sinister motive on legal advice it has been addressed to the Hon'ble Deputy Chief Minister and Home Minister instead of Secretary to the Government ofMaharashtra (Preventive Detention). Home Department (Special), Mantralaya, Mumbai 400032.

18. For the said reasons we do not find any merit in ground 6(D). Since as mentioned earlier only grounds 6(E) and 6(D) have been pressed by the Petitioner's counsel we dismiss this petition and discharge the rule.