Mrs. Tarabai W/O Shashikant ... vs State Of Maharashtra Through The ...
2002 Latest Caselaw 616 Bom

JUDGMENT

R.K. Batta, J.

1. The petitioner, who is the mother of the detenu Siddharth @ Siddhu Shashikant Mayekar, has filed this petition for quashing detention order dated 18th September, 2001 issued by the respondent No. 2 under which the detenu has been ordered to be detained under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred as the said Act).

2. Learned Advocate Shri M. R. Daga argued on behalf of the detenu and has raised before us three submissions namely :-

(1) There is no live link between the detention order and prejudicial activities and delay in issuing the detention order has not been explained. In this respect, reliance has been placed on Pradeep Nilkanth Palurkar v. S. Ramamurthi and Ors. .

(2) The detention is based upon solitary incident and in view of the judgment of the Division Bench of this Court in Pradip Bhikaji Satam v. S. M. Shangari and Ors. 2002 Cri. L. J. 1715 detention cannot be ordered on the basis of the solitary incident.

Copy of the bail application was neither before the Detaining Authority nor the same has been furnished to the petitioner though the copy of the order on the bail application was before the Detaining Authority and the same was also given to the detenu but the non consideration of the bail application and non furnishing of the same have caused serious prejudice to the petitioner, as a result of which his right to make representation under Article 22(5) of the Constitution has been adversely affected. In this connection, reliance has been placed on Abdul Sathar Ibrahim Manik v. Union of India and Ors. and Mrs. Anandi Laxman Patil v. Shri R. H. Mendonca, Commissioner of Police, Greater Bombay and Ors. .

3. Learned A. P. P., on the other hand, has submitted before us that there is no delay in issuing the detention order since the last prejudicial activities reported against the petitioner were disclosed by the in-camera witnesses on 31.7.2001 and besides this the detenu was involved in two other crimes in the month of July, 2001 itself. The said offences are :

(i) Offence under Sections 324 and 387 of the Indian Penal Code which was registered on 9.7.2001 and (ii) offence under Sections 399 and 402 of the Indian Penal Code which was registered on 15.7.2001. Therefore, on the date of detention order, the live link had not been snapped.

4. In respect of the second ground, learned A. P. P. has urged that it is not the case of single or solitary incident since the case is based upon two crimes in which the detenu was involved as also two in-camera statements. In this connection, learned A. P. P. has relied upon Rajendra @ Salman @ Raju Laxman Bagul v. Commissioner of Police 2002 All M. R. (Cri.) 541 and Phulwari Jagdambaprasad Pathak (Smt.) v. R. H. Mendonca and Ors. .

5. In respect of the third submission, learned A. P. P. has stated that the bail applications filed by the applicant himself are neither vital documents nor it was necessary to furnish the same to the detenu since the bail applications have been filed by the detenu himself. She has further submitted that non furnishing of the same has not affected the right of the representation of the detenu under Article 22(5) of the Constitution since as a matter of fact the detenu in this case had not filed any representation thereunder. In this respect, it is also urged that the subjective satisfaction of the Detaining Authority cannot be interfered lightly by the Court and that there is no justification whatsoever to quash the detention order on this ground. In this respect, reliance has been placed on Haridas Amarchand Shah of Bombay v. K. L. Verma and Ors. ; Manzoor @ Mansoor @ Manoj Ahmed Sayad Ahmed v. R. H. Mendonca and Ors. and Vinod Vitthal Rane v. R. H. Mendonca and Ors. 2001 (2) Mh. L. J. 437 : (2001) 103 (2) Bom. L.R. 307.

6. We shall deal with the contentions advanced by the learned Advocate for the detenu one by one.

7. The first contention raised before us relates to the snapping of the live link between the prejudicial activities and the order of detention. We have already referred to above that as against the detenu, offence under Sections 324, 387 of the Indian Penal Code had been registered on 9.7.2001 and another crime under Sections 399, 402 of the Indian Penal Code was registered on 15.7.2001. Besides this, the Detaining Authority had also relied upon two in-camera statements which were recorded on 31.7.2001 though the said statements related to incidents in the third and fourth week of June, 2001. Learned Advocate for the detenu had relied upon Pradeep Nilkanth Paturkar v. S. Ramamurlhi and Ors. (cited supra) in support of his contention. In this case, the detention order was based upon some criminal cases registered against the detenu and also on the basis of the statements of witnesses. The detention order was passed after 5 months and 8 days from the registration of last case and more than 4 months from submission of proposal. The statements of the witnesses referred to in grounds of detention were obtained after detenu was released on bail in all cases and in these circumstances, the Apex Court had set aside the detention order. The ruling of the Apex Court on facts cannot be applied to the case under consideration. Learned A. P. P. has relied upon Mehmood Abdul Rehman Shaikh v. R.H. Mendonca and Ors. 1999 (3) Mh. L. J. 393 wherein one of the challenges raised was delay in issuing the detention order. It was found that the time gap between the last offence and issuance of order was due to procedural aspects and the delay did not snap the live link between the prejudicial activities of the petitioner-detenu and the rationale of clamping a detention order on him. The last case which was registered against the detenu was on 1st and 3rd December, 1998 and the detention order was issued on 25th January, 1999.

8. The law in this respect is well settled by a number of pronouncements of the Apex Court and it would suffice to refer to some of them, namely, Golarn Husain alias Gama v. Commissioner of Police, Calcutta and Ors. ; Hasan Khan Ibne Haider Khan v. R. H. Mendonca and Ors. ; Pradeep Nilkanth Paturkar v. S. Ramamurthi and Ors. ; and judgments of the High Court in Mandakathingal Abdulla v. Jt. Secretary to the Government of India. Ministry of Finance, Department of Revenue, New Delhi and Ors. 1989 Cri. L. J. 2259 and Hassan Khan Ibne Haidar Khan v. R.H. Mendonca and Ors. . The position of law is that old and stale incident cannot construed as justifiable ground for passing an order of detention and there should be proximity of such incident and live link between the incident and the detention order. Therefore no strait-jacket formula can be laid down and each case will depend on its facts and circumstances. On facts even short delay which is unexplained may vitiate detention order and on the other hand long delay which is explained may not vitiate the detention order. The Apex Court in Golam Hussain @ Gama v. Commissioner of Police, Calcutta and Ors. (cited supra) has pointed out that no mechanical test on the counting months of interval is sound, but it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap short or long, on the reason for delay in taking preventive action, like information of participation being available only in the course of investigation.

9. Applying the above test to the case under consideration, we do not find that the live link between the detention order and the prejudicial activities had been snapped. The last crime registered against the detenu was on 15.7.2001 under Sections 399, 402 which is a serious offence. Thereafter the Detaining Authority took steps for collecting further evidence for the purpose of detention and the in-camera statements were recorded on 31.7.2001 though the same related to the incident which had taken place on third and fourth weeks of June, 2001. The proposal for detention was submitted on 31.7.2001 and was approved by the Commissioner of Police, Mumbai on 28.8.2001 since it had to pass thorough number of officers. We are informed by the learned A. P. P. that now this long process has been curtailed. The detention order was actually issued on 18.9.2001 after the papers and translations had been prepared and kept ready. In the circumstances, we do not find that the live link in this case between the detention order and prejudicial activities had been snapped. Accordingly, we do not find any merit in the first contention raised on behalf of the detenu.

10. Coming to the second contention, the case under consideration cannot be said by any stretch of imagination to be a case of solitary incident. We have already noted above that two crimes were registered against the detenu and in addition there were two in-camera statements. In view of this, it is not necessary to quote any authority relied upon by both the sides. As such, we do not find any merit in the second submission made by the learned Advocate for the detenu.

11. Coining to the last submission made by the learned Advocate for the detenu. The grievance raised before us is that the copy of the bail application in crime under Sections 399, 402 which was registered on 15.7.2001 was not before the Detaining Authority nor the same was furnished to the detenu though the copy of the order on the said bail application was before the Detaining Authority and the same was given to the detenu. We had asked learned A. P. P. whether the said bail application is available for perusal of the Court. But, learned A. P. P. was not in a position to produce the same. After going through the record, we found that the detention order was approved on 28.8.2001 and the order on the bail application had been passed on 29.8.2001. Thus, on the date of the approval of the detention order, no bail order had been passed on the application of the detenu even though he had filed bail application. In this view of the matter, the Detaining Authority was required to give compelling reasons as to why it was necessary to order detention when the detenu was already detained in connection with the crime which was one of the instances on the basis of which the detention order had been issued. In this respect, the Apex Court in Dharmendra Suganchand Chelawat and Anr. v. Union of India and Ors. has pointed that the detention order can be validly passed against the person in custody but for that purpose, it is necessary that the ground of detention must show that, (i) the Detaining Authority was aware of the fact that the detenu was already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu was already in detention. The Apex Court has further laid down that 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 he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. Even though in the return filed by the respondent No. 2, it is stated that the Detaining Authority had come to the conclusion on the basis of cogent material available on record that the detenu would have been released on bail under the normal law of the land and there was every possibility of his returning to indulge in the prejudicial activities which are dangerous to the maintenance of public order, learned A. P. P. was not able to produce any material on record to support this contention found in para 9 of the return filed by the respondent No. 2. The detention order though signed on 18.9.2001 had been approved on 28.8.2001 when the detenu was in custody though he had already filed bail application. The bail order was passed only on 29.8.2001. Nevertheless the Detaining Authority while approving the detention order on 28.8.2001 was required to record compelling reasons for approving the detention order against the detenu who was in custody in terms of para 9 of the return filed by the respondent No. 2. This material was not available before the Detaining Authority.

12. Secondly, though the copy of the bail order was before the authority and was given to the detenu yet the copy of the bail application was neither before the Detaining Authority nor supplied to the detenu and the same could not be even placed before this Court when the State was asked to do so. In this respect, Advocates for the parties have relied upon the number of authorities and we will briefly refer to the said authorities. Learned Advocate for the detenu has relied upon Abdul Sathar Ibrahim Manik v. Union of India and Ors. (cited supra) which makes a distinction in respect of the cases where the bail application has been granted and in cases where the bail application has been rejected. In this respect, the Apex Court has laid down :-

If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the Detaining Authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the Detaining Authority was aware of the fact that the detenu was in actual custody.

Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.

When the Detaining Authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the Detaining Authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the Detaining Authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.

In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the Detaining Authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.

13. It is pertinent to note that the Apex Court has laid down that in cases where the detenu is released on bail and is at liberty at the time of passing detention order then the Detaining Authority has to necessarily rely upon them as that would be a vital ground for ordering detention and in such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. Though on the date on which the detention order was approved the bail order had not been passed, but when the detention order was signed the bail order had already been passed though the detenu had not availed of the bail granted to him. In such eventuality the placing of the bail application before the Detaining Authority besides the order thereon was necessary and copy of the same was required to be furnished to the detenu.

14. A Division Bench of this Court following the said decision of the Apex Court in Mrs. Anandi Laxman Patil v. Shri R. H. Mendonca, Commissioner of Police, Greater Bombay and Ors. (cited supra) has observed that when detenu at the relevant times was on bail and bail papers were not placed before the Detaining Authority for consideration, the bail application being a vital document and non placement of the same before the Detaining Authority impaired subjective satisfaction of the authority and also affected detenu's rights under Article 22(5) of the Constitution. In another judgment,' Division Bench of this Court in Meer Mohmadali @ Baba s/o Meer Tojoddin v. S. B. Kulkarni and Ors. 2000 All M.R. (Cri.) 511 relying upon the judgment of the Apex Court has taken the same view that where copies of bail application and order releasing detenu on bail are not made available to detenu and Detaining Authority, it vitiates the subjective satisfaction and detenu was entitled to be set at liberty.

15. Learned A. P. P. has relied upon Haridas Amarchand Shah of Bombay v. K. L. Verma and Ors. (cited supra) but the said authority is not attracted to the facts and circumstances of the present case. In this case, it was held that the detention order was not vitiated since the documents revealing facts leading to arrest of detenu and conditional grant of bail were placed before the Detaining Authority. However, variation in condition of bail subsequently and non placement of the said application and order thereon before the Detaining Authority did not vitiate detention order since variation order had no relation to the activities carried on by the detenu. Learned A. P. P. has also relied upon Manzoor @ Mansoor @ Manoj Ahmed Sayad Ahmed v. R.H. Mendonca and Ors. (cited supra) wherein the detenu was not on bail and bail application or order thereon were not considered as vital documents and the non supply of vital documents did not vitiate the detention order.

16. The case before us is that though the detenu had been granted bail yet he did not avail of the bail granted to him and he was still in custody. It is on account of this that it was necessary that the bail application should have not only been placed before the Detaining Authority, the same should have been supplied to the detenu as well even though the order passed thereon had been placed before the Detaining Authority and was furnished to him. In the circumstances, non placing of the bail application before the Detaining Authority as also non supply of the same has resulted in affecting detenu's right under Article 22(5) of the Constitution even though in fact he might not have filed any representation thereunder. Non placement of the same before the Detaining Authority has also impaired the subjective satisfaction of the authority. In view of the above, we are inclined to accept the third ground raised by the learned Advocate for the detenu which gets further support from the fact that the Detaining Authority while approving the detention order on 28.8.2001 had not recorded any compelling reasons for the detention of the detenu who had filed bail application but no bail order had been passed on the date when the order was approved.

17. In view of this, the detention order dated 18.9.2001 is hereby quashed. The petition succeeds on that ground. Rule is accordingly made absolute. The detenu shall be set at liberty in case he is not required in any other case/matter.