Bombay High Court
Samsher Ali S/O Ramjan Ali vs State Of Maharashtra And Anr. on 4 March, 2003
Equivalent citations: 2004 (1) BomCR 124, 2004 CriLJ 207
Author: P Brahme
Bench: R Deshpande, P Brahme
JUDGMENT
P.S. Brahme, J.
1. Heard Mr. Jaiswal, learned counsel for the petitioner and Shri Sudhir Loney, learned A.P.P. for the Respondents.
2. Petitioner has approached this Court, under Article 226 of the Constitution of India, challenging the order passed by Detaining Authority, i.e. Respondent No. 2, under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders Act, 1981 (55 of 1981) (hereinafter referred to as 'the Act').
3. The petitioner has been detained on 30th September, 2002 by the order of detention dated 28th September, 2002 by Respondent No. 2. The copies of documents and grounds of detention were served on detenu/petitioner on 3rd October, 2002. The order of detention has been approved on 8th October, 2002.
4. The petitioner has challenged the order of detention on several grounds as indicated in the petition. However, since we are of the opinion that the petition deserves to be allowed in view of the decision of the Apex Court reported in 1988 (Supp) SCC 568, Commissioner of Police and Anr. -- Appellants v. Gurubux Anandram Bhiryani -- Respondent, we do not find it necessary to advert to the details of the grounds raised by the petitioner in the petition, as also the grounds of order of detention.
5. The learned counsel for the petitioner submitted that in the order of detention, passed by Respondent No. 2, the period of detention is not specified. This brings out inherent infirmity, and on that count alone, the order of detention is vitiated.
6. Mr. Loney, learned A.P.P. for the respondents, submitted that this ground raised by the counsel for petitioner cannot be taken into consideration, as the petitioner has not taken this ground in the petition.
7. The Apex Court in the decision reported in 1988 (Supp) SCC 568 (supra), was dealing with the order of detention passed by the Competent Authority under the Act. In fact, the High Court has quashed the detention order and that order of the High Court was under challenge before the Apex Court. The High Court quashed the detention by accepting the position that the fact that the detenu had been released on bail in criminal prosecution, had not been placed before the Detaining Authority and not being aware of such a material fact, he had come to the conclusion that it was necessary to place the detenu under detention under the Act. The Apex Court, having heard the learned counsel for both the sides, though was not in agreement with certain observations made by the High Court, found that it was difficult to interfere with the order, quashing the detention. The Apex Court observed that the order is bad on another ground, namely, the period of detention has not been indicated by the detaining authority. The scheme of this Act differs from the provisions contained in similar Acts by not prescribing a period of detention but as Section 3 of the Act indicates, there is an initial period of detention which can extent up to three months and that can be extended for periods of three months at a time. So it was open to the detaining authority to detain the detenu even for a period of lesser duration than three months. That necessitated the period of detention to be specified and unless that was indicated in the order, the order would also be vitiated.
8. This decision of the Apex Court is applicable to the case before hand. It is not disputed that in the order of detention, the period of detention is not specified. Therefore, as observed by the Apex Court, the order of detention is vitiated. The same is not sustainable and, as such, deserve to be quashed and set aside.
9. The contention of the learned A.P.P. that this ground cannot be taken into consideration as it was not specifically averred by the petitioner in the petition, cannot be accepted as the point raised is a legal point. That apart, as indicated above, the Apex Court, of its own, indicated the point involved in the matter, though the same was not raised either before the High Court or the Supreme Court. The Apex Court, though did not agree with some of the observations of the High Court, the Apex Court found that the order of detention is vitiated on the ground that the detaining authority has not specifically mentioned the period of detention in the order of detention. Therefore, it was absolutely meaningless whether the point involved was raised by the petitioner in his petition or not. The point involved being a legal point, the Court is justified in considering the same.
10. In the result, we allow the petition. The order of detention is quashed and set aside. The petitioner is ordered to be released forthwith, if not required in any other case. Hamdast be granted in the name of Superintendent, District Prison, Akola, as asked for.
