Chandradevi Jaiswal vs M.N. Singh, Commissioner Of ...
2001 Latest Caselaw 698 Bom

JUDGMENT

Vishnu Sahai, J.

1. Through thisiWrit Petition preferred under Article 226 of the Consti tution of India; the Petitioner who styles herself as the mother of the detenu Rajeshkumar Patiram Jaiswal, has impugned the order dated 16.3.2001 passed by the 1st Respondent Mr. M. N. Singh, Commissioner of Police, Brihan Mumbai, detaining the detenu under Sub-section 1 of Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LVof 1981} (Amend ment - 1996).

The detention order along with the grounds of detention, which are also dated 16.3.3001, was served on the detenu on 21.3.2001 and their true copies are annexed as Annexures A and B, respectively to this petition.

2. A perusal of the grounds of detention would show that the impugned order is founded on one C.R., i.e. C. R. No. 125/2000 under Sections 170, 365, 376(g), 392, 34 of the I.P.C., registered on the basis of a complaint dated 25.6.2000. lodged by Smt. Hasina Mohd. Shaikh at Tilak Nagar Police Station and in-camera statements of two witnesses viz.. witnesses A and B, which were recorded on 24.11.2000 and 25.11.2000, respectively.

Since in our view a reference to the prejudicial activities of the detenu, contained in the said C.R. and in-camera statements, is not necessary for adjudication of ground 8(c). pleaded in the petition, on which ground alone, in our judgment, this petition would succeed, we are not adverting to them.

3. 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 as Grounds 8(A) to 8(E), but since he has only pressed before us Ground 8(C), on which ground alone this petition deserves to succeed, we are not adverting to them.

4. Ground 8(C) in substance is that the detenu was in custody since 25.6.2000, in C. R. No. 125/2000, his bail having been rejected by the Metropolitan Magistrate, on 8.8.2000 and by the Sessions Court on 24.10.2000 and since on 16.3.2001, the date on which the Detaining Authority passed the impugned order, there was no cogent material for him to conclude that he was likely to be granted ball in the said C. R., the impugned order is bad in law.

5. Ground 8(c) has been replied to in para 10 of the return of the Detaining Authority. His reply therein in short is as under :

He was aware that the detenu was in custody and this awareness is reflected in para 6 of the grounds of detention. Since the detenu had preferred an application for bail he had reason to believe that he may be granted bail under the normal law of the land and the possibility of his being released on bail could not be ruled out. In view of his tendency and Inclination as reflected in the grounds of detention he was satisfied that in the event of his being released on bail he was likely to commit similar prejudicial activities. Consequently he felt that it was Imperative to detain him.

6. We have considered the averments made in para 8(c) of the petition, those contained in para 10 of the return of the Detaining Authority wherein the said grounds has been replied to and heard learned Counsel for the parties. As observed earlier, we find merit in ground 8(c).

7. The question that a detention order can be passed against a person in custody is no longer a res-integra. It is concluded by a plethora of decisions of the Supreme Court but to eschew prolixity we Intend to refer to that rendered by the Apex Court in the case of Dharmendra Suganchand Chelawat and Anr. v. Union of India, wherein in paragraph 19 the Apex Court has observed thus :

"19. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (I) the Detaining Authority was aware of the fact that the detenu is already in detention; and (ii)

there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression 'compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him from engaging in such activities.

A perusal of the said paragraph would show that a detention order can be clamped against a.person in custody but the grounds of detention must show that :- (i) the Detaining Authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons in the form of cogent material from which the Detaining Authority was satisfied that :

- (a) the detenu is likely to be released from custody in the near future and

(b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and consequently it was imperative to detain him to prevent him from engaging in them.

8. In our view, when the impugned detention order is examined on the anvil of the law laid down by the Apex Court in para 19 of (supra), we regret that. It cannot be sustained.

We have seen that averment in ground 8(c) is that there was no cogent material for the Detaining Authority to conclude about the Imminent likelihood of the detenu being released on bail in C.R. No. 125/2000. We have also seen that in para 19 of Chelawat's case (supra), the Supreme Court has laid down that the expressing 'compelling reasons' means that there should be cogent material to conclude that the detenu was likely to be released from custody in near future. To our regret, in the instant case there is no such cogent material. It is pertinent to mention that C.R. 125/ 2000 was under Sections 170, 365. 376(g), 392, 34 of the I.P.C. and the Detaining Authority has not disputed in his return that the detenu was in custody in it from 25.6.2000 and his bail application had been rejected by the learned Metropolitan Magistrate on 8.8.2000 and by the Sessions Court on 24.10.2000. It is also pertinent to mention that the averment in ground 8(c) in terms that after 24.10.2000, the detenu had not moved any application for bail in any Court of law, has also not been challenged by the Detaining Authority in his return.

9. In the factual matrix referred to above, in our judgment, there was no cogent material from which the Detaining Authority could have concluded that the detenu was likely to,be released on ball in C.R. No. 125/ 2000 in near future and hence in our view, the impugned detention order is in violation of the ratio laid down by the Apex Court in para. 19 of Chelawat's case (supra) and cannot be sustained.

10. We also make no bones in observing that the impugned detention order cannot be sustained for a secondary reason. We have seen that in Chelawat's case (supra) the Supreme Court has laid down that the Detaining Authority must show his awareness in the grounds of detention that the detenu was in custody at the time when he passed the detention order. In the Instant case the said awareness has not been shown by him.

We have no reservations in observing that the averment made by the Detaining Authority in para 10 of his return in terms that he was aware that the detenu was in custody and this awareness is reflected fron: para 6 of the grounds of detention, cannot be accepted as being correct.

Para 6 of the grounds of detention reads thus :

"I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order. I am aware that you have not been granted ball in Tilak Nagar Police Station C.R. No. 125/2000. However, I have reason to believe that you may get ball under normal law of land in due course. In view of your tendencies and inclination reflected in the offences committed by you as stated above, I am further satisfied that in the event of remaining at large, you are likely to revert to the similar activities, prejudicial to the maintenance of public order in future and that it is necessary to detain you under the Maharashtra Prevention of Dangerous Activities of Slumlords. Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment - 1996) to prevent you from acting in such a prejudicial manner in future."

In our view it is manifest from a perusal of the said paragraph that the Detaining Authority has not shown his awareness that the detenu was in custody in C.R. No. 125/2000.

11. Mr. B. R. Patil, Acting Public Prosecutor, strenuously urged that since in para 6 of the grounds of detention it has been mentioned by the Detaining Authority that "I am aware that you have not been granted bail in Tilak Nagar Police Station C.R. No. 125/2000. However. I have reason to believe that you may get bail under normal law of land in due course. In view of your tendencies and inclination reflected in the offences committed by you as stated above, I am further satisfied that in the event of remaining at large, you are likely to revert to the similar activities, prejudicial to the maintenance of public order in future.", it follows as a logical imperative that he was aware of the fact that the detenu was in custody in the said C.R.

12. We are constrained to observe that we do not find any merit in the Said submission of the Acting Public Prosecutor.

We have seen that the ratio laid down by the Apex Court in Chetawat's case (supra) is categorically in terms that the grounds of detention must show that the Detaining Authority was aware of the fact that the detenu is already in detention. This obviously means that there should be a positive assertion in the grounds of detention that the detenu is in detention. Since in the instant case, in the grounds of detention there is no positive assertion that the detenu is in custody the said submission of Mr. Patll would not save the detention order from being vitiated in law.

13. We would be falling in our fairness if we do not refer to another contention canvassed by Mr. Patil in this connection. Mr. Patil contended that since neither in ground 8(c) of the petition nor in any other ground pleaded in the petition there is any pleading to the effect that the Detaining Authority has not shown his awareness in the grounds of detention that the detenu was in judicial custody in C.R, No. 125/2000 it would not be open for us to take this ground into consideration for striking down the Impugned order.

14. We are constrained to observe that we do not find any merit in Mr. Patil's submission. It is well-settled that in habeas corpus petitions the law

of strict pleadings does not apply and if the material for determination of a ground is available on record, a ground though not pleaded can be considered by the Court. In this connection it would be necessary to advert to two decisions of the Supreme Court viz. Harish Pahava v. State of V. P. and Ors., and Smt. Icchu Devi Choraria v. Union of India and Ors.

A perusal of para 2 of Pahaua's decision would show that it was urged before the Supreme Court that since before the High Court it was not pleaded that the detenu's representation to the State Government was not decided within a reasonable time and hence the delay was fatal to the detention the detenu could not canvass this point. A perusal of the said paragraph would also show that the said submission was repelled by the Apex Court which observed thus :

"This point was no doubt not taken before the High Court, but in view of its importance arid the fact that all the material necessary for its determination is available on record, we have allowed it to be raised before us and have overruled a preliminary objection taken by the State to the effect that it should not be entertained.

A perusal of para 4 of Icchu. Devi's case (supra) would show that therein the Supreme Court observed thus :

"It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleadings nor place undue emphasis on the question as to on whom the burden Of proof lies."

15. Since in the instant case a perusal of para 6 of the grounds of detention itself makes it manifest that the Detaining Authority has not shown his awareness that the detenu was in detention in C.R. No. 125/ 2000 it would also be open for us to take into consideration this circum stance, primarily along with that mentioned in para 9 for holding that the detention order would be vitiated in view of the ratio laid down in Chelawat's case (supra).

16. For the'sald reasons we allow this petition; quash and set aside the Impugned order; direct that the detenu Rajeshkumar Patlram Jaiswal be released forthwith unless wanted in some other case; and make the rule absolute:

At this stage the learned Acting Public Prosecutor orally prayed that we should stay the operation of our Judgment because the State of Maharashtra wants to challenge it in the Apex Court. We reject this prayer because we have quashed the impugned order following the ratio laid down by the Supreme Court in Chelawat's case (supra).

A copy of this Judgment shall be sent by the Office to respondent No. 1, Commissioner of Police, Greater Mumbat, within a period of one week from today.

17. Issuance of certified copy expedited.