Mushtaque Ali S/O. Mohammad Ali vs State Of Maharashtra, Through ...
2003 Latest Caselaw 861 Bom

JUDGMENT

R.K. Batta, J.

1.Petitioner has been detained u/s. 3(2) of the Maharashtra Prevention of Dangerous Activities of Slum lords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Amendment of 1996) vide order dated 9th December, 2002 of the Additional D.G. and Commissioner of Police, Nagpur City issued in exercise of powers conferred by sub-section 1 of section 3 of the said Act. The petitioner challenges said detention in this petition.

2.The petitioner has taken several grounds in this writ petition and we have heard Mr. Jaiswal, the learned Advocate for the petitioner and Mr. Mirza, the learned A.P.P.

3.It is not necessary to refer to all the grounds urged by the learned Advocate for the petitioner during the course of arguments since, in our opinion, the petitioner will succeed on the ground that though on the face of it, it is reflected that the material relating to his antecedents and past history has not been taken into consideration for the purpose of issuing detention order, yet reading of the impugned order of detention itself, as also reply filed on behalf of respondent no.2 goes to show that the said material has in fact been taken into consideration and has influenced subjective satisfaction of the Detaining authority for the purpose of passing the detention order. The learned Advocate for the petitioner urged before us that the cases referred to in para 2 of the detention order have in fact been considered by the Detaining Authority for the purpose of passing of the detention order and out of said cases, in the case at serial no.1 the petitioner was acquitted by the Court vide judgment dated 14th November, 2002. The xerox copy of said order has been placed before us. His contention is that this fact of acquittal was not placed before the Detaining Authority and was suppressed by the authorities putting up the case for detention and suppression of such information has also vitiated the detention order. In this connection, reliance is placed by the learned Advocate for the petitioner on the case of Dharamdas Shamlal Agarwal .vs. The Police Commissioner and another, . In this case, the material fact of acquital of detenue in two of the cases mentioned in the table appended to the grounds, out of five cases, had not been placed before the Detaining authority and the Apex Court came to the conclusion that satisfaction of the Detaining Authority was vitiated and the detention order was quashed.

4.Mr. Mirza, the learned A.P.P., has drawn our attention to the Division Bench ruling of this Court to which both of us were parties namely Raju Vithalrao Bhadre .vs. State of Maharashtra and another, 2001 Cri.L.J. 1363, as also Division Bench of this Court in Najma Hasan Bagwan .vs. M.N.Singh, Commissioner of Police, Bombay and Others, 2002 Cr.L.J. 1432 and he urged before us that reference to the past incidents and history is only a narration of events/preamble to the detention order, but the same has not been considered at all for the purpose of passing detention order and this fact is specifically referred to in para 2 of the detention order itself. According to the learned A.P.P., the detention order cannot be quashed on this ground as urged by the learned Advocate for the petitioner. In the detention order para nos. 1 to 4 read as under :

" Since the year 1996, you have been continuously engaging yourself in the commission of violent and desperate acts such as voluntarily causing hurt and grievous hurt by dangerous weapons, wrongful restraint, riot, abusing people in filthy language and threatening to kill them, assault or use of criminal force to deter public servant from discharging of his duty, kidnapping, attempt to murder dtc. All your above activities besides being criminal are directly and indirectly spreading danger, terror and feeling of insecurity in the minds of peace loving and law-abiding citizens residing in the area of Police Stations, Lakadganj, Tahsil and Panchpaoli in Nagpur City.

2.Your criminal record in the past shows that you have committed serious offences as enumerated below, which shows your inclination/tendencies toward commission of serious offences, which are against the maintenance of public order. Note that, these offences are not considered while formulating this detention order against you, however the copies of FIRs are enclosed and supplied to you to show that you are committing offences habitually.

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Sr.    P.Stn.& Under Sec.         Date    C.C.No.       Remark
No.    Cr. No. Offence & dt.

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1.      Lakadganj 294,506(b)IPC  24.11.96  234/97      Court
          431/96    7.10.97                           pending

2.     Panchpaoli 341,323,325,    3.12.99  633/99       -"-
       504/99 34 IPC 21.12.99

3.     Panchpaoli 294,506(b),34   27.11.00 R-37/01      -"-
       3176/2000 IPC 6.2.01

4.     Panchpaoli 147,148,149    10.3.01  R-197/01      -"-
       106/2001 323 IPC 13/07/01

5.     Lakadganj 324 IPC         15.3.01    173/01      -"-
       102/2001 19.5.01

6.     Tahsil 294, 506(b)        25.5.01    178/01      -"-
       173/2001 353 IPC 26/7/01
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3. Prosecution under specific offences enumerated under chapter XVI and XVII of the IPC initiated against you and preventive action by way of 110 Cr.P.C. taken against you have had no effect on your criminal activities. Immediately after release from jail or custody, you reverted to your criminal activities with renewed vigour and without any fear of law and the law enforcement agencies. Thus, you have created a reign of terror in the minds of law abiding and peace loving citizens residing in the area of Police Stations, Panchpaoli, Lakadganj and Tahsil in Nagpur City."

4A. In para 5 of the detention order, there is reference to recent criminal activities and particulars of the same are given in the para 5 which include a criminal case and two in camera statements which are found in paragraph 6.

5. In paragraph 2 of the detention order referred to above, it is stated that the offence referred in the said paragraph are not considered while formulating this detention order. However, copies of the F.I.R. are enclosed and supplied to you to show that you are comitting offence habitually. Nevertheless, in paragraph 13 to the detention order, it is stated that the Detaining Authority has carefully gone through the material placed before him and is subjectively satisfied that the detenue is acting in the manner extremely prejudicial to the maintenance of public order. It is pertinent to note that in this paragraph it is stated, " In view of your tendencies and/or inclinations reflected in the incidents referred above, I am further satisfied that you are likely to indulge in activities extemely prejudicial to the maintenance of public order in future also 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 (Amendment of 1996) to prevent you from acting in such a prejudicial manner in future."

6. The expression "tendencies and/or inclinations" reflected in the incidents referred above has not only been picked up in this paragraph from paragraph 2 of the detention order, but reference is clearly to the incident referred therein. Moreover, para 2 of the detention order speaks of furnishing of copies of the FIRs in respect of the offences mentioned in the said paragraphs to the detenue. In the Return filed by respondent no.2 in para 29, it was reported that the petitioner had committed serious offences in the past which shows his inclinations/tendencies towards commission of serious offences which are against maintenance of public order. In this affidavit, in paragraph 9 it is stated that the Detaining Authority has passed the order after scrutinizing the proposal and perusal of each and every document, while formulating the grounds of detention. It is also pertinent to note that in para 22 of the reply of the Detaining Authority, it is categorically averred that each and every relevant document has been supplied to the petitioner as per Index B; that no irrelevant and extraneous documents were supplied to the petitioner and only relevant documents were supplied to the petitioner. This means that the copies of F.I.Rs. in relation to the offence disclosed in paragraph 2 of the detention order, according to the Detaining Authority, are relevant documents. It will be too much to expect that these relevant documents have not influenced the Detaining Authority while passing the detention order. Thus, though on the face of it and from outer appearance of the detention order it may be argued that the said past incidents have not been considered, yet a careful reading of the detention order, as also the affidavit filed by the Detaining Authority goes to show beyond any doubt whatsoever that the said material was in fact considered while passing the detention order. Secondly, out of the said crimes referred to in para 2 the detenue was acquitted in the crime at sr.no.1 on 14.11.2000, but the said fact was suppressed by the Sponsoring Authority and was not placed before the Detaining Authority on account of which also the satisfaction of the Detaining Authority was vitiated.

7. Reliance placed by the learned A.P.P. on two Division Bench Judgments of this Court does not in any manner help in sustaining the detention order in Raju Vithalrao Bhadre case (supra). This Court, after relying upon the judgment of the Apex Court in Abdul Sattar .vs. Union of India , wherein it was laid down that when Detaining authority has merely referred to certain incidents in narration of events and has not relied upon them, the same will not cause any prejudice. It was observed by this Bench that whether in a given case the Detaining Authority has casually or passingly referred or relied upon such incidents would depend on the facts and grounds which are required to be examined by the Court. In that case it was found that though in the grounds of detention, there was reference to certain offences and extraneous order, yet the grounds of detention itself categorically stated that the same have not been considered while formulating the detention and as such, the documents pertaining to the same had not been supplied. It was in this context that this Court had observed that the Detaining Authority has merely referred to them in narration of events and had not relied on the same. However, in the case before us, the Detaining authority had not only supplied copies of the F.I.Rs. of the past cases while stating that the same were not considered, but had in fact considered the same, as is clear from para 13 of the grounds of detention, which clearly states that in view of your tendencies and/or inclinations reflected in the incident referred to above, the Detaining Authority was further satisfied regarding his detention under the said Act.

8. Likewise, in the Division Bench Judgment of this Court in Najma Hasan Bagwan case (supra) it was observed that the past incidents referred were preamble to the grounds of detention and the Detaining Authority had only made reference of the earlier detention of the detenue which was not taken into consideration on account of which it could not be said that there was non-application of mind on the part of the Detaining Authority. In that case, the Division Bench of this Court, on the facts of that case, was satisfied that the said incidents were not taken into consideration while passing the detention order. But, in the case under consideration, we have absolutely no doubt in our mind that the said past incidents were not only taken into consideration but the same had also influenced the Detaining Authority in passing the detention order as is crystal clear from para 13 of the grounds of detention, as also the return filed by the Detaining authority, of which we have already made reference above.

9. For the aforesaid reasons, the detention order cannot be sustained and is hereby quashed. The detenue shall be set at liberty in case he is not required in any other case.