Mrs. Anita W/O Suresh Atmaram ... vs The State Of Maharashtra & Ors.
2001 Latest Caselaw 166 Bom

JUDGMENT

Dr. Pratibha Upasani, J.

1. Though this writ petition preferred under Article 226 of the Constitution of India, the petitioner, who styles herself as the wife of the detenu Suresh Atmaram Ambre, has impugned the detention order dated 3rd May, 2000, passed by the 2nd respondent, Shri R. H. Mendonca, Commissioner of Police. Brihan Mumbai, 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 3rd May, 2000, was served on the detenu on 18.8.2000 and their true copies are annexed to this petition as Annexure-A collectively.

3. A perusal of the grounds of detention (Annexure-A collectively) will show that the impugned detention order is founded on one C.R. namely. C.R. No. 1/2000 under sections 452. 506(11), 323. 504 and 114 of the Indian Penal Code, registered on the basis of a complaint dated 2.1.2000, lodged by one Anna Chavan at Bhandup Police Station and two in-camera statements of witnesses A and B, recorded on 17.1.2000 and 18.1.2000, respectively.

4. Since, in our view, the details relating to the prejudicial activities of the detenu contained in the aforesaid C.R. and the two in-camera statements are not relevant to the disposal of this writ petition, we are not adverting to them.

5. We have heard Mr. Ajit R. Pitale, learned counsel appearing for the petitioner and Mr. I. S. Thakur, learned Addl. Public Prosecutor appearing for the respondents. Though the petitioner has pleaded a large number of grounds i.e., from 8-A and 12-A(A) to (J) (byway of an amendment), in our view, this petition deserves to succeed on a solitary ground, namely that pleaded as 12-A(C), we are not referring to the other grounds of challenge pleaded in the petition.

6. The petitioner has averred in the said ground, namely ground 12-A(C), that the last in-camera statement was recorded on 18.1.2000 and the detention order came to be issued on 3.5.2000. The submission of the petitioner is that this undue delay of about three-and-half months in issuance of the detention order vitiated the genuineness of subjective satisfaction of the Detaining Authority. It is also averred by the petitioner that this undue delay clearly goes to show that the Detaining Authority was not serious to issue the detention order against the detenu.

7. The above mentioned contention of the petitioner has been replied to by the Detaining Authority in his affidavit dated 15.2.2001. The relevant paras for this purpose are paras 4, 5 and 6 of the said affidavit.

8. While denying that there was undue delay in issuance of the detention order, the Detaining Authority has averred as follows :

It is submitted by the Detaining Authority that the present proposal along with the accompanying papers were submitted, as per the usual practice, to the Deputy Commissioner of Police, Zone-VI, Mumbai, on 22.1.2000, who, after carefully going through all the papers, gave his endorsement on the same date. Thereafter, the papers were forwarded to the Additional Commissioner of Police, North-East Region, Mumbai, who, after carefully going through all the papers, gave his endorsement thereon on 24.1.2000. Thereafter, all the papers came to be forwarded to the Senior Inspector of Police, PCB-C1D, Mumbai, who, after carefully going through all the papers, prepared a detailed typed-note and thereafter forwarded the papers to the Deputy Commissioner of Police (P), Mumbai. The Deputy Commissioner of Police (P), Mumbai, carefully went through all the papers and gave his endorsement thereon on 5.2.2000 as he was busy in scrutinising and considering other proposals. Thereafter, alt the papers were forwarded to the Additional Commissioner of Police (Crime), who carefully went through all the papers and gave his endorsement thereon on 9.2.2000. Thereafter, all the papers were forwarded to the Joint Commissioner of Police, who then went carefully through all the papers and gave his endorsement thereon on 11.2.2000. Thereafter, all the papers were put up before the Detaining Authority, who, after carefully perusing and considering all the papers and material was of the opinion that it was a fit case for detention. He then gave his endorsement to that effect on 19.2.2000. It is submitted that during the intervening period, the Detaining Authority was extremely busy in scrutinising other proposals, sensitive matters, important administrative work and attending urgent meetings. All the papers were then forwarded to the Sponsoring Authority for the purpose of

fair typing, for preparing the translation of the documents in the language known to the detenu and for preparing the necessary sets of the documents, etc.

It is further submitted by the Detaining Authority in his affidavit that after completing all the necessary work in the matter i.e., typing, translation, etc., the necessary sets of the documents were received as per the procedure in the office of the Senior Inspector of Police, PCB-CID, Mumbai. He then checked all the documents, got it typed and got them translated in Marathi language, which was the language known to the detenu. Thereafter, necessary sets were prepared which was then put up before the Additional Commissioner of Police (Crime) on 29.4.2000, who went through all the papers and put his endorsement thereon on 2.5.2000. Thereafter, the papers were submitted to the Detaining Authority, namely Shri R. H. Mendonca, Commissioner of Police, Brihan Mumbai. He then once again carefully went through the proposal and the papers accompanying the same, finalised the grounds of detention and contemporaneously issued the order of detention on 3rd May, 2000.

9. We have heard learned counsel for the parties. We have also gone through the contention raised by the petitioner, so also the reply filed by the Detaining Authority, and we are constrained to observe that we are not satisfied with the explanation given by the Detaining Authority with respect to the delay in passing the impugned order of detention dated 3rd May, 2000. The averment in the affidavit and the chronology reveals that the proposal was submitted as per usual practice to the Deputy Commissioner of Police, Zone-VI, Mumbai, on 22.1.2000 but in spite of the paraphernalia at his disposal, the necessary sets could be prepared and were put up before the Additional Commissioner of Police (Crime) only on 29.4.2000, who put his endorsement thereon only on 2.5.2000. Thus, in our view, there is an Inordinate delay of 210 days in passing the impugned detention order which has not been properly explained by the Detaining Authority and which has resulted into infraction of the fundamental right of the detenu guaranteed by Article 22(5) of the Constitution of India. The Detaining Authority ought to have kept in mind that since the order which was to be passed with respect to the detention of a person depriving him of his liberty, it was incumbent upon the Detaining Authority to pass the same with utmost promptitude. Unfortunately, this has not been done. This has resulted into depriving the detenu of his precious and valuable right guaranteed by Article 22(5) of the Constitution of India to make a representation at the earliest opportunity.

10. We may conveniently refer to the decision of the Supreme Court in the case of Hemlata Kantilal Shah v. State of Maharashtra, wherein with respect of the aspect of delay it has been observed by the Apex Court as follows :-

"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."

11. Having considered the facts of this case and the chronology as given by the Detaining Authority in its affidavit, we are of the considered opinion that the delay of 210 days has not been satisfactorily explained. Therefore, the impugned detention order has to be quashed and set aside as it is unsustainable in law. Hence the following order :

In the result, we allow this writ petition: quash and set aside the Impugned detention order dated 3rd May, 2000, passed by respondent No. 2, and direct that the detenu Surcsh Atmaram Ambre be released forthwith if not wanted in any other case. Rule is made absolute accordingly.