Sajid A Pana Moinuddin Shaikh vs M.N. Singh, Commissioner Of ...
2002 Latest Caselaw 1040 Bom

JUDGMENT

D.G. Karnik, J.

1. In this petition, the petitioner has challenged the order of detention dated 30th March, 2002 passed by the Commissioner of Police, Brihan Mumbai who is the first respondent herein and confirmed by the State Government under Sub-section (3) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the M.P.D.A. Act).

2. The facts leading to the passing of the detention order may briefly be stated thus:

On 12th January, 2002 at about 11.30 a.m. one Ms. N (full name is not disclosed in this judgment to protect the identity of the victim) whom the petitioner knew since long was passing along Gurunanak Road, Bandra, Mumbai when the petitioner made her to accompany him. Ms. N told that she was going to the college and initially declined to accompany him but, subsequently on insistence of the petitioner, she accompanied him in an autorickshaw. The autorickshaw took a different route and on her questioning, the petitioner explained that he had some work. Autorickshaw stopped near a lodge and the petitioner asked Ms N to accompany him inside, where the petitioner made some entry in the hotel register and asked Ms. N to come to the upper floor where she was then taken to a room where the petitioner raped her. A first information report was lodged by Ms N and C. R. No. 18 of 2002 under Section 363, 376 of Indian Penal Code was registered against the petitioner. Statements of nine witnesses were recorded during the course of the investigation on the complaint of rape. The complaint led the police to investigate the past of the petitioner wherein some witnesses came forward to give statements on a condition that their names and identity would not be disclosed to the petitioner. Accordingly, statements of three witnesses were recorded in -- camera.

Witness A is a stall owner who stated that the petitioner collects hafta money (periodic ransom amount) from the stall holders on Linking Road, Bandra and teases young girls and women and has created a reign of terror. He also narrated some specific incidents. Witness B who is a housewife has stated that when she had gone to purchase vegetables, the petitioner caught hold of her left arm and told her to come along with him where he would please her. He then started kissing her and pressed her breast. On her raising shouts for help, the petitioner threatened the people who had gathered with a knife and then left the scene by warning her not to lodge a complaint. Witness C is a shopkeeper who stated that the petitioner collected hafta from him and narrated the incident about the demand of hafta from him.

After considering the statements of witnesses A, B and C and the statement of Ms N, the first respondent passed the impugned order of detention dated 30th March, 2002 under Sub-section (2) of Section 3 of the M.P.D.A. Act against the petitioner.

3. On 1st April, 2002 M/s Havnur and Associates, Advocates and Legal Consultants acting on behalf of Arif Mohammed Shaikh, brother of the petitioner sent a representation addressed to the Chief Secretary, Additional Chief Secretary, Commissioner of Police, and Senior Inspector of Police. The said representation was delivered to the addresses by hand on 2nd April, 2002. In the meanwhile, the Commissioner of Police sent his order along with the necessary papers to the State Government for approval under Sub-section (3) of Section 3 of the M.P.D.A. Act. By an order dated 4th April 2002, the Additional Chief Secretary (Home) in whom the powers of approval of the order were vested under the Rules of Business of the Government, passed an order approving the order passed by the Commissioner of Police. In view of the approval granted by the state government, the first respondent Commissioner of Police did not pass any order on the representation dated 1-4-2002 made by the brother of the petitioner.

4. The petitioner himself made a representation on 15th April, 2002 through his Advocate Mr. P.M. Havnur against the order of detention dated 30th March, 2002 (date is wrongly written as 1-4-2002 in his representation). The representation was addressed to the (i) Chairman, Advisory Board, (ii) Secretary to the Government of Maharashtra and also to (iii) the Commissioner of Police. By an order dated 19th April, 2002 the representation was rejected by the Additional Chief Secretary (Home) and the communication of the rejection was sent to the petitioner as well as his Advocate on the same day. The petitioner has thereafter, filed this petition challenging his detention.

5. Mr. Chitnis, learned senior counsel for the petitioner canvassed before us the following points :--

(i) When an order for detention is passed by the District Magistrate or Commissioner of Police under Sub-section (2) of Section 3 of the M.P.D.A. Act, the detenu has a right to make a representation to the detaining authority who must consider the representation made by the detenu independent of consideration of the representation which the detenu may make to the State Government. Obligation is cast under Article 22(5) of the Constitution of India on the detaining authority to consider the representation made by the detenu and the detaining authority cannot omit to consider the representation on the ground that its order, in the meantime is approved by the State Government. In the present case, as the commissioner of police who had passed the detention order has not considered the representation dated 1st April, 2002 made by the detenu's brother and therefore, the constitutional right of the detenu to make a representation granted under Article 22 of the Constitution of India is violated.

(ii) Statement of witnesses A, B, and C were recorded in camera by the Senior Inspector of Police and were verified by the Assistant Commissioner of Police; they were not personally verified by the detaining authority namely the Commissioner of Police and therefore, the personal satisfaction of the detaining authority was based upon the statements which were not properly verified. The statements of witnesses A, B, and C therefore ought not to have been considered by the detaining authority.

(iii) If the statements of witnesses A, B and C are ignored, as they ought to be, the order of detention is based on a isolated incident of alleged rape of Ms. N on 13th January, 2002. Though, the incident of rape was denied and case of intercourse with the consent was made out by the detenu, Mr. Chitnis submitted that assuming without admitting the charge to a single isolated incident of rape can at the most be a problem of law and order and cannot be said to have affected public order. The detention order based on this incident of rape is therefore, illegal.

(iv) The representation made by the detenu on 15th April, 2002 was not properly considered by the State Government. The order of rejection dated 19-4-2002 showed non -- application of mind and therefore the detention is bad in law.

6. In view of the view which we have taken at point number (iv) referred to above, it is not necessary for us to express any opinion on point numbers (i) to (iii).

7. It is admitted that the first respondent Commissioner of Police did not consider the representation dated 1-4-2002 made by the brother of the petitioner through his Advocates. Two reasons have been mentioned by the Additional Public Prosecutor for non -- consideration of the representation.

(i) It was firstly contended that in the order of detention which was served on the detenu, it was specifically mentioned that in case the detenu made a representation, it should be sent to the Commissioner of Police, Brihan Mumbai C/o Dy. Commissioner of Police (Preventive) Crime Branch, 3rd floor, Shivaji Market, MRA Marg, Mumbai -- 400 001 through the Superintendent of Jail where the detenu was detained. It was pointed out that the representation was addressed to the Commissioner of Police, Head office, Crawford Market and was hand delivered. It was pointed out that several communications are received by the office of the commissioner of police and it takes sometime for the receipt clerk/officer to go through each and every communication, mark it to the proper branch or the officer concerned and then deliver it to the concerned officer.

It was stated that since the representation of the detenu are required to be considered expeditiously, a special address was given at which the communications should be sent so that the representation would straight away come on the table of the commissioner of police for being considered expeditiously. Despite mention of this address, as the representation was delivered at a different address, than that mentioned in the detention order, time of couple of days taken by the office to place it before the commissioner of police cannot be said to be unreasonable and by the time the representation came up before the commissioner of police, the State Government had already passed an order of approval thereby divesting the commissioner of police the jurisdiction to consider the representation.

(ii) It was also contended that representation was not made by or on behalf of the petitioner but was admittedly made by the brother of the petitioner. In the circumstances, it was contended, it was not necessary for the commissioner of police nor necessary for the State Government to consider the said representation.

8. In the supplementary affidavit dated 17-9-2002, Mr. Mahesh Narain Singh, Commissioner of police has specifically stated in para 9 : "However, apart from the facts and circumstances mentioned therein about the non placement of the said representation before me, I state that the said representation cannot be said to be representation in the eyes of the law, since neither it was preferred by the detenu nor on his behalf." The learned Additional Public Prosecutor submitted that the representation was however, considered by the Additional Chief Secretary (Home), who was competent to consider it on behalf of the state government, by way of an abundant caution; and merely because the representation of the brother was considered, it did not cease to be an invalid representation, not made by or on behalf of the detenu.

9. The learned Additional Public Prosecutor also placed before us in original, the orders dated 4th April, 2002 and 19th April, 2002 passed by the Additional Chief Secretary. (Originals are returned after keeping on record the xerox copies which should be kept in a sealed cover). The first order dated 4th April, 2002 is an order of approval by the Additional Chief Secretary, (Home), of the detention order passed by the Commissioner of Police which only incidentally mentions that the representation dated 1st April, 2002 sent by M/s Havnur and Associates Advocates and Legal Consultants is also rejected. It was specifically contended by the Additional Public Prosecutor that the representation dated 1st April, 2002 was a nullity in the eyes of law because, it was not made by the detenu or on behalf of the detenu but it was made by the Advocate on behalf of the brother of the detenu and therefore, there was no legal obligation on the part of either the commissioner of police or the State Government to consider the representation. Even if this is accepted, the State Government in any event ought to have considered the representation dated 15th April, 2002 made by the detenu through his Advocate.

10. On receipt of the representation dated 15th April, 2002 a note was prepared by the Desk Officer on 17th April, 2002 who appears to have signed it on the same day. Thereafter, the Deputy Secretary appended his signature below the said note on the same day, and the Secretary (Preventive Detention) appended his signature below the note on 18th April, 2002. The Additional Chief Secretary (Home) who was the competent authority to consider the representation appended his signature to the said note on 19-4-2002. Not even a single word was scribed/written by the Additional Chief Secretary to indicate that he had applied his mind, except by appending his signature to the note. Even if we assume that the Secretary was in agreement with everything that was stated in the note and therefore he chose only to put his signature instead of rejecting the representation, in his own words, we are certain in the facts and circumstances of the case, of the non application of mind by the Additional Chief Secretary. What is stated in the note, which is in marathi is translated hereinbelow :

"Havnur of Association, Advocate and Legal Consultants, have in the past made a representation dated 1-4-2002 to the government. The points raised in the said representation and present representation (15-4-2002) are identical and the previous representation dated 1-4-2002 has been rejected. The points raised in the representation of the detenu do not appear to be meritorious. As there is preponderant evidence against the detenu and as the commissioner of police had passed the order only after examination of all the records, the order (of detention) is proper. Hence, representation made by the Advocate of the detenu be rejected and be informed accordingly."

11. It is thus clear from the note that the representation of the detenue dated 15th April, 2002 was rejected on the following grounds :--

(i) That there are no new points in the representation dated 15th April, 2002 and the points in the said representation were identical with the points in the representation dated 1st April, 2002 which was rejected;

(ii) There was sufficient evidence against the detenu and the commissioner of police had passed the order only after considering all the records.

12. Considering the reasoning No. (ii) above, it appears that the Additional Chief Secretary and the persons who prepared/submitted the note for his consideration abdicated the responsibility of considering the representation afresh but, had merely rested his satisfaction on the examination of the records by the Commissioner of police. This was improper as the Additional Chief Secretary should have himself considered whether the materials before the commissioner of police were sufficient for passing the detention order.

13. There was still a graver lapse as regards the fourth ground. It is stated that the representation dated 15th April, 2002 contained the points which were identical with points in the representation dated 1st April, 2002. This is factually incorrect. We have gone through both the representations dated 1st April, 2002 and 15th April, 2002. The representation dated 1st April, 2002 was only relating to the incident of alleged rape on Ms N. It was stated therein that the alleged intercourse was with consent of Ms. N and it was unlikely that she would have gone to the lodge without her consent. The representation dated 15th April, 2002 contained atleast two more points other than the incident of rape. In para 2 and 3 of the representation dated 15th April, 2002, it was specifically alleged that what the witnesses A, B and C have stated in camera was a concocted story which was false and fabricated. It was further stated that the petitioner never collected any hafta and the petitioner was a vendor selling garments on Linking Road and it was the police personnel as well as officials of the municipal corporation who were collecting hafta from the petitioner himself. The previous representation dated 1st April, 2002 which is dubbed by the learned Additional Public Prosecutor to be a nullity and hence not considered by the commissioner of police does not contain these two additional points. These points were therefore, not considered at all by anybody, neither the commissioner of police who was the detaining authority nor by the Additional Chief Secretary, acting for the government.

14. Article 22 of the Constitution of India grants protection against preventive detention. Under Clause 5 of Article 22, the detaining authority is required to communicate to the person detained the grounds on which the order is made and afford him the earliest opportunity to make a representation against the order. In the present case, when the representation was made by the detenu's brother, it was not considered by the detaining authority on the ground that the representation was not made by the detenu but, by his brother and that too was received late (though hand delivered in his office on the 2nd April, 2002). When the representation was made to the State Government on behalf of the detenu, by his Advocate, it was not considered properly and there has been complete non-application of mind. It was rejected firstly on the ground that the points in the said representation were identical with the first representation dated 1st April, 2002 though we are satisfied that the points were not identical and secondly, on the ground that the commissioner of police had already considered all the records. This was again not true as it was the duty of the Additional Chief Secretary who was the competent authority to consider the representation independently and in fact the detaining authority (i.e. Commissioner of Police) had only considered the records before making the detention order and had not considered the representation at all.

15. For these reasons, we allow the petition and direct that the petitioner detenu be released forthwith unless he is required in connection with any other offence. The Rule is made absolute accordingly.