Sumitra Viresh Tari, Mother Of ... vs M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 170 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 Mahadev @ Bhai Viresh Tari has impugned the detention order dated 18.11.2000 passed by the First Respondent Mr. M. N. Singh, Commissioner of Police, 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).

The detention order along with the grounds of detention, which are also dated 18.11.2000 was served on the detenu on 18.11.2000 itself and their true copies are annexed to this petition.

2. A perusal of the grounds of detention would show that the impugned detention order is founded on one C. R. namely C. R. No. 188 of 2000 under sections 452, 387, 427 of the I.P.C. registered on the basis of a complaint lodged on 26.5.2000 by Satish Patil at Dahisar Police Station, Mumbai and in-camera statements of three witnesses namely A, B and C respectively; those of A and B were recorded on 17.8.2000 and that of C on 18.8.2000. Since in our view, a reference to the prejudicial activities of the detenu contained in the said C.R. and the aforesaid in-camera statements is not necessary for adjudication of ground 6(c) pleaded in the petition, on which ground in our judgment this writ petition deserves to succeed, we are not adverting to them.

3. We have heard learned counsel for the parties. Ground No. 6(c) in short is that the respondent No. 1 be called upon to point out to the Court as to when the proposal was received by him; when the grounds of detention were formulated; and in case the grounds have not been formulated expedttiously, the detention order deserves to be quashed and set aside.

4. Ground No. 6|c) has been replied to in two returns namely in para 9 of the return of Mr. M. N. Singh (Detaining Authority) and para 3 of the return of P.S.I. S. M. Narkar, the Sponsoring Authority.

5. We now take up the reply furnished to the said ground in the said returns.

We begin with that furnished in para 9 of the return of the Detaining Authority.

In short he has stated therein as under :

(i) On 18.8.2000 the last in-camera statement was recorded.

(ii) On 19.8.2000, the proposal was submitted to the Dy. Commissioner of Police, Zone-10 who went through the papers and on 22.8.2000 (20.8.2000 and 21.8.2000 being holidays) the same was forwarded to the Additional Commissioner of Police.

(iii) On 23,8.2000, the Additional Commissioner of Police after going through the papers gave his endorsement thereon and forwarded the papers to the Sr. Inspector of Police, P.C.B., Bombay who after going through them gave his endorsement on 25.8.2000 and forwarded the papers to the Dy. Commissioner of Police (Preventive).

(iv) On 30.8.2000, after going through the proposal and papers, the Dy. Commissioner of Police (Preventive) (27.8.2000 was a holiday) forwarded the papers to the Additional Commissioner of Police, Crime who after going through them gave his endorsement and the same day i.e. on 30.8.2000, forwarded the papers to the Joint Commissioner of Police.

(v) On 31.8.2000, the Joint Commissioner of Police gave his recommendation and forwarded the papers to the Detaining Authority.

(vi) On 31.8.2000, the Detaining Authority, received the papers and after going through them, gave his endorsement on 31.10.2000 to the effect that it was a fit case for detention and formulated the draft grounds of detention.

The reason as to why it took the Detaining Authority so much time is spelt out as under :-

(a) From 2.9.2000 to 12.9.2000 on account of Ganpati, there was bundobust and hence, the entire staff was busy with it;

(b) Between 9.10.2000 to 21.10.2000, the Prime Minister of India visited Bombay for medical treatment and there was bundobust in order to maintain law and order situation:

(c) In the first week of October, 2000 there was also bundobust on account of Navratri festival;

(d) Between 1.9.2000 to 31.10.2000, 46 fresh proposals were received from different police stations, out of which 38 were approved and 31 proposal orders (detention orders) were passed; and

(e) 20.8.2000, 21.8.2000, 1.9.2000, 17.9.2000, 24.9.2000, 1.10.2000, 2.10.2000. 8.10.2000, 22.10.2000 and 29.10.2000 were holidays.

(vii) On 31.10.2000, the Detaining Authority forwarded the papers to the Sponsoring Authority for the purpose of typing, translation of documents in the language known to the detenu and for preparing seven sets of documents and on 4.11.2000, after the said work was done, the papers were received in the office of the Senior P. I., P.C.B.. Bombay-

(viii)On 5.11.2000, the Senior P. I., P.C.B., Bombay after checking the documents put them before the Additional Commissioner of Police who on the said date after going through them submitted them to the Detaining Authority.

(ix) On 18.11.2000, the Detaining Authority issued the detention order.

Why it took the Detaining Authority 13 days time has been replied in terms that in between 5.11.2000 to 17.11.2000 he had received 7 fresh proposals from different police stations and passed orders on 12 such proposals.

At the end of para 9, the Detaining Authority has averred that in the said factual matrix, it cannot be said that there was any delay in issuing the order of detention and neither can it be said that live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on the detenu has been snapped.

6. We now take up the reply furnished in respect of ground No. 6(c) in para 3 of the return of P.S.I. S. M. Narkar, the Sponsoring Authority.

In short, it is as under :-

The last in-camera statement was recorded on 18.8.2000, on which date after collecting the necessary papers he submitted the proposal of detention of the detenu to the Sr. Inspector of Police. Dahisar Police Station who after going through them submitted the proposal for detention on 19.8.2000 and forwarded It to the Dy. Commissioner of Police who after going through the papers gave his endorsement on 22.8.2000- (20.8.2000 and 21.8.2000 were holidays) and forwarded papers to the Additional Commissioner of Police who after going through them gave his endorsement on 23-8.2000. On 25.8.2000 the Sr. Inspector of Police, P.C.B. Bombay after preparing a detailed note gave his endorsement and forwarded the papers to the Dy. Commissioner of Police (Preventive). On 28.8.2000. (27.8.2000 was a holiday) after going through the papers, the Dy. Commissioner of Police (Preventive) gave his endorsement and forwarded the papers to the Additional Commissioner of Police (Crime) who after going through them

gave his endorsement on 30.8.2000 and the same day they were forwarded to the Joint Commissioner of Police who after going through them gave his endorsement on 31.8.2000. On 31.8.2000, itself the papers were received by the Detaining Authority who after going through them gave his endorsement on 31.10.2000 in terms that it was a fit case for detention. Then the papers were sent to the Sponsoring Authority for fair typing, xerox etc. The same was completed on 4.11.2000 on which date, the Sr. Inspector of Police. P.C.B. gave his endorsement. Thereafter, the Additional Commissioner of Police gave his endorsement on 5.11.2000 and thereafter the papers were forwarded to the Detaining Authority who after going through them gave his endorsement on 18,11.2000.

At the end of para 3, P.S.I. Narkar has averred that in view of the explanation furnished, it is denied that there is any delay in the issuance of the detention order and it is also denied and 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.

7. We have perused the averments made in ground 6(c) of the petition, the reply of the Detaining Authority contained in para 9 of his return and that of the Sponsoring Authority contained in para 3 of his return. We are constrained to observe that the explanation for the delay furnished in the said returns is not satisfactory and in our Judgment, since there is merit in ground No. 6(c), this petition should succeed for the reasons stated hereinafter.

8. In the instant case, we have seen that although the Joint Commissioner of Police, Bombay had given his recommendation on 31.8.2000, and on the said date itself the papers were put up before the Detaining Authority but, the latter gave his endorsement in terms that the detenu should be put under preventive detention two months later i.e. on 31.10-2000- Earlier, we have spelt out the reason as to why it took the Detaining Authority so much time.

Those reasons are contained in (a) to (e) of para 5 above. We are constrained to observe that we find them to be untenable.

Reason (a) is that between 2.9.2000 to 12.9.2000, on account of Ganpati festival, the entire staff was busy in bundobust. It should be remembered that the Detaining Authority has not mentioned that he himself was busy in the bundobust on any of said dates. At any rate, it should be borne in mind that papers were not with the entire staff which was busy with the bundobust but, with the Detaining Authority himself. It should be borne in mind that the Detaining Authority has not averred in his affidavit that he required some clarification from the staff which was busy In bundobust duty or something had to be ascertained from them.

Hence, we do not find any merit in reason (a).

Reason (b) is that in between 9.10.2000 and 21.10.2000, the Prime Minister of India had visited Bombay for medical treatment and therefore, there was bundobust in order to maintain law and order. Again, for the same reason for which we find explanation furnished in reason (a) to be untenable, we find the said explanation untenable. We are not prepared to believe that the Detaining Authority would have been busy in the bundobust for the entire period and nor does he say so in his return.

We now come to reason (c) namely that in the first week of October, 2000 there was also bundobust on account of Navratri festival-It should be borne in mind that the Detaining Authority has not stated in his return that he was busy nor are we prepared to believe that he must have been busy In it. It is common knowledge that officers subordinate to him are busy in bundobust. Apart from this, for reasons for which we have rejected (a) and (b), we reject this reason also.

We now come to reason (d) namely that from 1.9.2000 to 31.10.2000 46 fresh proposals were received from different police stations, out of which 38 were approved and 31 detention orders were passed.

On the first blush, this reason appeared to be attractive but, on a closer scrutiny, we are not inclined to accept it.

It should be borne in mind that the entire papers which the Detaining Authority had to consider were the documents relating to C.R. No. 188 of 2000 under sections 452. 387. 427 of Dahisar Police Station and three in-camera statements of witnesses A, B and C. In our view, it would not have taken the Detaining Authority more than an hour to peruse them. We are sure he could have spared the said time if he was sensitive to the promptitude with which a prevention detention proposal had to be disposed off.

We are constrained to observe that he was oblivious to the urgency with which he should have dealt a preventive detention proposal. In our view, the time of two months taken by him was far too long.

We asked Ms. Aruna Kamath, Additional Public Prosecutor, learned counsel for respondents, to tell us from the original file whether other proposals were prior to the proposal to detain the detenu, which was dated 19.8.2000, or subsequent to the said date. Our reason for asking her was that if the file reflected that they were prior to 19.8.2000 then, it was proper for the Detaining Authority to give priority to them over the detenu's proposal. Ms. Kamath went through the original and true to her customary fairness stated that the file did not reflect whether other proposals were prior to 19.8.2000 or after 19.8.2000.

In such a factual matrix, in our view, explanation (d) is both vague and unconvincing.

We now come to explanation (e) namely that 20.8.2000, 21.8.2000, 1.9.2000, 17.9.2000, 24.9.2000, 1.10-2000, 2.10.2000, 8.10.2000, 22.10.2000 and 29.10.2000 were holidays.. Ms. Kamath urged that the Supreme Court has laid down that holidays should be excluded by the Court. Even if these 10 holidays are excluded, in our view, there was still substantial delay, which has not been satisfactorily explained on the part of the Detaining Authority, in issuing the detention order.

9. We have not dealt separately with the explanation furnished by the Sponsoring Authority in his return between the period 31.8.2000 and 31-10.2000 because during the said time, the file and papers were with the Detaining Authority and in our view, the proper affidavit to be considered in respect of the delay was that of the Detaining Authority. Apart from it, we may mention that the Sponsoring Authority in para 3 of his return has also furnished same reasons which have been furnished by the Detaining Authority.

10. It should be borne in mind that delay simplicitor in the issuance of the detention order does not vitiate it and the same is only vitiated on the vice of delay if no satisfactory explanation for the delay is forthcoming. Hemlata v. State of Maharashtra,

We make no bones in observing that there may be cases where there is a long delay in the issuance of a detention order but, if adequate and satisfactory explanation is furnished for the delay, the order would not stand vitiated on the vice of delay. On the converse, there may be cases where the delay is not very long but, since the explanation is unsatisfactory, the detention order would be vitiated on the vice of delay.

When it comes to deciding the question whether in a given case, the detention order is vitiated on the vice of delay, we have to turn to the explanation furnished by the Detaining Authority in his return. We dare say, as observed by us earlier, that in the instant case the explanation is not satisfactory.

We would like to close this Judgment with the observation that there is no strait-Jacket formula having universal application on the basis of which it can be said that on account of a specified delay, the detention order is vitiated. In the ultimate analysis, it would depend on the facts and the explanation furnished in each case.

11. For the said reasons, we find merit in ground 6(c); allow this writ petition; quash and set aside the impugned detention order: direct that the detenu Mahadev @ Bhai Viresh Tari be released forthwith if not required in some other case and; make the rule absolute.