Smt. Suhasini Krishna Patil vs Shri R.S. Sharma, Commissioner Of ...
2004 Latest Caselaw 56 Bom

JUDGMENT

V.K.Tahilramani, J.

1. The petitioner who is the mother of detenu has challenged the order of detention dated 25th March, 2003 whereby the detenu Sachin Krishna Patil has been detained under Section 3(1) of the Manarashtra Prevention of the Dangerous Activities of Slumlords and Bootleggers Drug Offenders and Dangerous Persons Act, (hereinafter referred to as the "MPDA Act".

2. The detention order dated 25th March 2003 and the grounds of detention of even date were served on the detenu along with accompanying documents on 26th March, 2003. The said detention order is issued on the basis of one case i.e. L.A.C. No. 886 of 2002 and two incamera statements. In respect of L.A.C. in the grounds of detention, it is stated that on 18th December, 2002 at about 19.15 hours, A.P.I. Varpe of Shivaji Park Police Station, received an information on telephone that the detenu and his associate Sanjay Shridhankar who are affiliated to Amar Naik Gang, would be coming near Tandoor Hotel. Manmala tank Road, Mahim, Mumbai at about 20.00 hours for taking ransom. On receipt of this information, under the supervision of A.P.I. Varpe, A.F.I. Awalkar and staff arranged a trap at the said spot. At about 20.30 hours, A.P.I. Varpe spotted the detenu and his associate infront of Tandoor Hotel, Mahim Mumbai. He gave a signal to the staff to nab the detenu and his associate. However, sensing the presence of police, the detenu and his associate started running. The police staff chased them and apprehended both of them. Personal search of the detenu and his associate was taken in the presence of panchas and detenu was found in possession of countrymade firearm with two live cartridges of 0.12 bore. The associate of the detenu was found in possession of a sickle. On the basis of said incident, L.A.C. No. 886 of 2002 under Sections 3, 4 and 25 of Arms Act and under Section 37(1)(a) read with Section 135 of the Bombay Police Act has registered against the detenu and his associate. Besides the above mentioned case, the statements of two witnesses A and B have been recorded incamera on 31.1.2003 and 6.2.2003 respectively. However, we do not find it necessary to refer to the details of the said statements for considering and deciding the grounds raised by the learned counsel for the petitioner.

3. Though a large number of grounds have been raised in the present petition, Mr. Tripathi, the learned counsel for the petitioner has pressed only two grounds. The first ground is mentioned in ground 8(B) of the petition. Briefly in the said ground, it is stated that the detaining authority has relied on L.A.C. Case No. 886 of 2002 for arriving at ms satisfaction regarding passing the impugned order of detention. In para 4(a)(vi) of the grounds of detention, it is stated that in the said case, the detenu had preferred an application for bail before the learned Metropolitan Magistrate and the said Court granted bail to the detenu in the sum of Rs. 10,000/- by imposing certain conditions. In the ground 8(B), it is further stated that it is not understood as to on what basis, the detaining authority made such statement even though the bail application and the bail order was not placed before him. It is further stated in the ground 8(B) that the said bail application and the order granting bail, has not been furnished to the detenu and hence, the right of detenu to make an effective representation is violated due to non-furnisrsing of the bail application and bail order.

4. Ground 8(B) has been replied by the detaining authority in para 8 of his affidavit. In para 8 of the affidavit, it is denied that the bail application and bail order in L.A.C. No. 886 of 2002 was not placed before the detaining authority while issuing the order of detention against the detenu. In para No. 8 of the affidavit filed on behalf of detaining authority, it is stated as under:

" With reference to paragraph No. 8(B) of the petition, I deny that the bail application and bail order in LAC No. 886 of 2002 was not placed before me while issuing the order of detention against the detenu. I say that in the bail application, there is no specific averment pertaining to the facts of the case in L.A.C. No. 886 of 2002, similarly the bail order states that the detenu is released on furnishing his surety of Rs. 10,000/- with P.R. Bond with condition to attend Police Station once in a week i.e. on Monday between 7 to 8 p.m. till filing of the charge sheet. Hence, in the grounds of detention in para 4(a)(vi) the detenu has been communicated the entire bail order and also has been furnished with the translation of the said bail order in Marathi language which is the language known to the detenu in order to enable the detenu to make effective and purposeful representation. Hence, since the detenu has already been communicated the entire bail order along with the translation in the language known to him, therefore, though inadvertently the detenu has not been furnished the said document that itself will not vitiate the order of detention and further will not affect the detenu's right to make effective representation under Article 22(5) of the Constitution of India. I say that the judgment of the Apex Court will not be applicable to the facts of this case. I deny that my subjective satisfaction is vitiated due to non-placement and non-consideration of the bail application and the order. I repeat and reiterate that both bail application and bail order were placed before me while issuing the order of detention against the detenu. It is denied that the order of detention is illegal and bad in law. It is further denied that the order of detention is liable to be quashed and set aside. Thus, there is no substance in the say of the petitioner in this para."

5. The learned counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of Abdul Sathar Ibrahim Manik v. Union of India and Ors. reported in 1991 Criminal LAW Journal 3291. He has placed reliance on the observations in sub-para (6) of para 12 wherein it is observed that :

"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."

6. Mr. Tripathi, the learned counsel for the petitioner has also placed reliance on the decision of this Court in the case of Sameer Sulewan Shama v. State of Maharashtra reported in 1997 ILJ 186. Mr. Tripathi submitted that the case of Abdul Sathar Ibrahim Manik (supra) has been considered in the case of Sameer Suleman (supra), and it has been held therein in sub-para (iii) of para 14, that:

"In a case where bail has been granted without giving reasons, placing of an operative part of the order granting bail which indicate the fact that bail has been granted and the terms and conditions on which the bail has been granted, may be sufficient. But in a case where, in the application for bail the detenu urges grounds in support of his plea for bail and the court grants bail by a reasoned order, copy of the complete order of the court granting bail and the bail application on the basis of which that order has been made, are vital and material for recording subjective satisfaction regarding preventive detention of the person concerned."

In the case of Sameer Suleman, it has been further held that:

"once the order granting bail is a reasoned order, the detenu must be furnished with the copy of the order whatever may be the nature of reasoning."

7. The learned counsel for the petitioner has also placed reliance on the decision of the Apex Court in the case of M. Ahamedkutty v. Union of India and Anr., . He has relied on the observations in paras 19 and 20 of the said decision wherein it is held that "non-supply of the bail application and the bail order had affected the right of the detenu to make an effective representation". The learned counsel for the petitioner has relied on the decisions mentioned above in support of his contention that non-supply of the bail application and the order granting bail to the detenu, has affected his right to make an effective and early representation and hence, that circumstance would vitiate the order of detention.

8. On the other hand, the learned Public Prosecutor, has submitted that the decisions of the Apex Court in the case of M. Ahamedkutty v. Union of India (supra) and Abdul Sathar Ibrahim Manik (supra), have been considered in a latter decision of the Apex Court in the case of K.Varadraj v. State of Tamil Nadu and Anr. . In the said decision, both the earlier decisions i.e. in the case of M. Ahamedkutty v. Union of India and Abdul Sathar Ibrahim Manik v. Union of India, have been considered by the Apex Court and thereafter, the Apex Court has observed in the judgment that "application for bail and order made thereon are not necessarily vital and material documents and the same would depend upon the facts of each case".

9. It is well settled that in respect of non-furnishing of documents to the detenu, it is not non-furnishing of each and every document which would vitiate the detention order but only non-furnishing of a vital document would vitiate the detention order. In such circumstances, it would have to be considered whether in the present case the bail application and the order granting bail are vital and material documents. The learned Public Prosecutor has brought to our notice that in the bail application, there is no specific averment pertaining to the facts of the case relating to L.A.C. 886 of 2002. In the said application for bail it was simply stated that the investigation was over and hence no fruitful purpose would be served by keeping the accused in custody. It is further mentioned that the accused has a permanent place of residence in Mumbai and he is not likely to abscond if he is ordered to be released on bail. It is further stated that the accused is the only earning member in the family. In our view, this is the least that could have been said in any bail application. There are no specific averments pertaining to the facts of L.A.C.No. 886 of 2002. All the grounds stated in the bail application are general grounds and do not deal with the merits of the case or show in any manner as to how the accused person (detenu) is an innocent person. Thus, in this view of the matter, it cannot be said that the application for bail is a vital document. In such case, non-furnishing of such document would not vitiate the detention order.

10. The learned Public Prosecutor has also brought to our notice the bail order whereby the detenu came to be granted bail in L.A.C. No. 886 of 2002. The said order reads as under:

"Perused the application. Heard the advocate. Accused be released on furnishing his surety of Rs. 10,000/- with P.R. Bond with condition to attend Police Station once in a week on Monday between 7 to 8.00 p.m. till filing of the charge-sheet."

A perusal of the said order shows that the order of bail is not at all a reasoned order and the Magistrate has not given any reason nor discussed the facts of the case but has only stated that accused to be released on bail on certain conditions. The learned Public Prosecutor has contended that if the order granting bail is not a reasoned order, it is not a vital document and as such, non-furnishing of such document to. the detenu would not affect his right to make an effective representation and thus, it would not vitiate the order of detention.

11. In support of his contention, the learned Public Prosecutor has placed reliance on the case of Mr. Usman Bani Yakubali v. State of Maharashtra and Ors. reported in 2002 ALL MR (Cri.) 2148. In the said case, it has been held that in the absence of reasons, the order granting bail is not a vital and material document hence, non-placement or non-furnishing of such order to the detenu Mould net affect the subjective satisfaction of the detaining authority nor affect the right of the detenu to make an effective representation. In the present case, we are not concerned with the non-placement of the order of detention before the detaining authority, but we are only concerned with the aspect of non-furnishing of the said order to the detenu. In the case of Usman Bani (supra) the order was not a reasoned order and the detenu came to be granted bail by imposing stringent conditions. In case of Usman Bani (supra), it has been observed that:

"the detaining authority has specifically stated that the copy of the bail application and bail order dated 17.5.2001 were very much placed before the detaining authority but the detaining authority has not relied upon the same" and, therefore, the copy was not furnished to the detenu. Apart from this explanation, what is required is that, the bail order is not a reasoned order and, therefore, non-placement of the said order does not affect the right of the detenu to make effective representation, nor it affects subjective satisfaction of the detaining authority".

12. In the present case, no reasons at ail were given by the learned Magistrate for granting bail. In this view of the matter, it cannot be said that the order granting bail is a vital document. Thus, we find considerable merit in the submission of the learned Public Prosecutor.

13. The next ground which has been urged by Mr. Tripathi in para 8(F) of the petition is that the detenu made a specific request dated 13.6.2003 that certain vital documents which are referred to in the grounds of detention and relied on by the detaining authority be furnished to the detenu to enable him to make effective representation. The detenu nor his lawyer has so far received any documents requested for, hence thereby the detenu's right to make effective representation guaranteed under Article 22(5) of the Constitution of India is affected. The order of detention is illegal and unconstitutional since the detenu was deprived from making effective representation at the earliest.

14. The learned counsel for the petitioner has submitted that on 13.6.2003 representation-cum- request was made on behalf of the detenu for furnishing some vital documents. Though in the representation which is annexed as Annexure-D to the petition request for eight documents was made the learned counsel for the petitioner Mr. Tripathi has restricted his contention to only four documents which are as under:

"i) Bail application in LAC No. 886 of 2002, a case referred to in the ground of detention and relied on by the detaining authority.

ii) Bail Order passed by the Court in LAC No. 886 of 2002.

v). Kindly furnish any material or information to show that the detenu is affiliated to Amar Naik Bang.

vii) Charge sheet in LAC No. 886 of 2002."

15. Mr. Tripathi has contended that all these documents were referred to and relied upon by the detaining authority in the grounds of detention but the detenu had not been supplied with the said documents. Hence, he had preferred a representation-cum-request to the State Government to furnish these documents. He has submitted that till today none of these three documents have been furnished to him. . The learned counsel has submitted that the detenu is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. He has submitted that when the detenu makes a request for such document, they should be supplied to him expeditiously. In support of this contention, he has placed reliance on the decision of the Apex Court in the case of Ramchandra A. Kamat v. Union of India and Ors. . He has also placed reliance on the decision in the case of Mrs. Nafisa Khalifa Ghanem v. Union of India and Ors. . In the said case, the detenu had made a request for certain documents. Mr. Tripathi has placed reliance on the observations made in the case of Mrs. Nafisa which are as follows:

"a demand for documents should not be taken lightly but the detaining authority must be prepared to supply at least those materials or documents which are clearly mentioned in the grounds of detention and he must have those materials ready with him so as to be given to the detenu as and when asked for."

16. Mr. Tripathi has also placed reliance on the decision of the Apex Court in the case of Mehrunissa v. State of Maharashtra , wherein it is held that failure to furnish the copies of material documents to the detenu on demand vitiated the detention. In the said case, the case was under the Customs Act and it pertained to seizure of silver. In the said case, the panchnama relating to the seizure of silver which was the very basis for passing the order of detention) was not furnished to the detenu though it was demanded by him. So also, the statement made by the detenu in an inquiry relating to the said seizure of silver was not furnished to the detenu though he had made a demand for the same. In the facts relating to the case of Meherunissa (supra), the said documents were indeed, vital documents. In the present case, we are concerned with four documents, two of them being the bail application and the bail order. In respect of these two documents, we have already observed above that in the facts and circumstances of the present case, the said documents cannot be said to be vital documents and hence, though the detenu might have made a demand for such documents in his representation, non-supply of these two documents would not affect the right of the detenu to make an effective representation and thus, inturn, would not vitiate the order of detention.

17. In respect of third document i.e. request for furnishing any material or information to show that the detenu is affiliated to Amar Naik Gang, it is noticed that the detaining authority had not reached a conclusion that the detenu was affiliated to Amar Naik Gang but in the grounds of detention, he has stated in para 4(a)(ii) that information was received on telephone by A.P.I. Varpe that the detenu and his associate Sanjay who are affiliated to Amar Naik Gang, would be coming to Tandoor Hotel for taking ransom. In respect of this. the learned Prosecutor has submitted that the said material from which the averment has been made by the detaining authority in para 4(a)(ii), appears in the F.I.R. pertaining to L.A.C. No. 886 of 2002 and copies of the said F.I.R. have been furnished to the detenu and thus, there was no question of furnishing of any other material or information to the detenu in this regard. We find much force in this submission. In the present case, there was no question of furnishing of any other material or information to the detenu in respect of averment made by the detaining authority in para 4(a)(ii) that the detenu was affiliated to Amar Naik Gang. Whatever material in this regard i.e. the F.I.R. and statements of witnesses were placed before the detaining authority, copies thereof have been supplied to the detenu. Thus, in our view, it cannot be said that the right of the detenu to make an effective representation is vitiated. Now we shall consider the two decisions which have been relied upon by Mr. Tripathi i.e. in the case of Ramchandra Kamat and Nafisa Ghanem. In Ramchandra Kamat, the Apex Court had held in the later part of para 6 that:

"The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. What is reasonable expedition will depend on the facts of each case."

Thus, it is clear that it is necessary to supply only documents which have been referred to and relied upon by the detaining authority. The same view has been taken by the Apex Court in various subsequent decisions wherein it has been held that it is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that would affect the detention order. Useful reference may be made to the decision of a three Judge Bench of the Apex Court in the case of L.M.S. Ummu Saleema v. B.B. Gujral and Anr. . In the case of Ummu Saleema in para 5, it has been held that "it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention". It has been further observed in the said para that if the document which has not been furnished to the detenu, has not been relied upon by the detaining authority in making the order of detention, the detenu cannot complain that he was prevented from making an effective representation. Thus, it is clear that it is only non-furnishing of relied on documents which would affect the detention order. In respect of the decision of the Apex Court in the case of Nafisa Ghanem, it is to be noted that the said decision was rendered by a Single Judge in the year 1980 whereas the Apex Court in several subsequent decisions by larger benches has repeatedly held that it is necessary to furnish only documents which have been referred and relied upon by the detaining authority. One of such decisions is in the case of Ummu Saleema (supra). Thus, it is clear that it is not at all necessary to furnish documents which have only been mentioned in the grounds of detention or to which only a passing reference has been made in the grounds of detention. In view of various decisions of larger benches of the Apex Court, taking a contrary view than the one in Nafisa Ghanem's case, obviously we would have to follow the decisions of the larger benches of the Apex Court. Thus, there is no merit in the submission made by Mr. Tripathi.

18. In respect of the 4th document for which the request had been made i.e. for the copies of the charge sheet in LAC 886 of 2002, in our view, the said document is not a vital document for the following reasons. The charge-sheet is a document which very briefly sets out the prosecution case against the accused persons in a particular criminal case. The facts in the charge-sheet are always taken from the various other documents pertaining to the said case like F.I.R., statements of witnesses, various panchnamas etc. Thus, in Tact, the charge-sheet is only a brie duplication of the material which is reflected in the other documents in a case. However, the detaining authority may not rely on all the material and all the documents pertaining to a criminal case, he may rely only on some of the documents in the said case. For example, though there may be recovery of some articles at the instance of the accused or co-accused in the case, the detaining authority may not rely on the said material to issue the order of detention. In order to reach to the conclusion that the activities of the detenu are prejudicial to the maintenance of public order, the detaining authority would normally rely on the F.I.R. and the statements of witnesses in the said case. Moreover, we have noticed that in the present case, copies of all relied upon documents have been furnished to the detenu. In the present case, it is clear that the detaining authority has not placed any reliance on the charge-sheet filed in L.A.C. 886 of 2002. The settled legal position is that only copies of documents referred to and relied upon by the detaining authority have to be supplied to the detenu. Once the documents in a particular case have been placed before the detaining authority and the detaining authority has relied upon some of the documents therein for issuing the order of detention, it is only non-furnishing of copies of those documents i.e. relied on documents, which can be said to have' affected the right of the detenu to make an effective representation. Thus, the charge sheet cannot be said to be a vital document. It cannot be said that the charge-sheet is such a document that non-placement of it before the detaining authority and/or non-furnishing of the same to the detenu would vitiate the order of detention. Hence, though the detenu may have made a demand for the charge-sheet, non-supply of the same would not vitiate the order of detention in any manner.

19. Thereafter, Mr. Tripathi has contended that he had preferred a representation dated 13.6.2003 wherein, he had requested for supply of certain vital documents, however, the State Government informed him to make the request to the detaining authority. Mr. Tripathi has urged that the State Government could not have directed the detenu to approach the Commissioner of Police for supply of vital documents inasmuch as after the detention order is approved by the State Government, the State Government becomes the detaining authority. In our view, there is no quarrel with respect to this contention that the State Government becomes the detaining authority once the order of detention is approved by the State Government. Mr.Tripathi has further contended that once the State Government becomes the detaining authority, the State Government, ought to have considered his request in respect of the documents for which a request had been made on behalf of the detenu and ought not to have referred him to the detaining authority. He has submitted that this has affected his right to make an effective representation. In support of this contention, Mr. Tripathi has placed reliance on an unreported decision of this Court dated 20th September, 2003 in the case of Shri. Aslam Amin Shaikh v. Shri. M.N. Singh and Ors. in W.P.No. 155 of 2003 (Coram: Smt. Ranjana Desai and V.M. Kanade, JJ.), wherein it has been held that "once the order of detention is approved by the State Government, the State Government becomes the detaining authority and as such, it is the State Government who has to consider the request made by the detenu for furnishing of all the documents and non-furnishing of such documents by the State Government would affect the right of the detenu to make an effective representation".

20. Mr. B.R. Patil, the learned Public Prosecutor has brought to our notice the later decision of this Court dated 3.10.2003 in Criminal Writ Petition No. 266 of 2003 in the case of Mr. Sunil Pandurang Parkar v. Mr. M.N.Singh, Commissioner of Police, Sr. Bombay and Ors. in W.P.No. 266 of 2003 Coram: Smt. Ranjana Desai and P.V. Kakade, JJ.). Mr. Patil has submitted that in the said decision, earlier decision in the case of Mr. Aslam Amin Shaikh v. M.N.Singh and Ors., has been clarified. In the case of Sunil Parkar, the decisions in the case of Ramchandra A.Kamat (supra), and other decisions of the Apex Court, in the case of Vashisht Narain Karwaria v. State of U.P. and Anr., 1990 Cri.L.J. 1311 and Kirit Kumar Chaman Lal Kundaliya v. State of Gujrat and Ors., 1981(2) S.C.C. 37 as well as the decision of this Court in the case of Aslam Amin Shaikh (supra) have been considered. In para 8 of the decision in the case of Sunil Pandurang Parkar (supra), it is observed as under:

" In any case, we would like to clarify that though in Asian's case (supra) we have stated that once a detention order is approved and if a representation is addressed to the State Government after approval of the detention order, the State Government cannot direct the detenu to go from authorities to authorities in search of documents, request for any and every document need not be complied with by the State Government. It is our experience that on a number of occasions some innocuous documents which have no relevance to the detention of a person are asked for. It is not necessary to supply such documents. Whether a particular document is a vital or not, mould depend on facts and circumstances of each case. While examining this submission, it will be open to the Court to see the nature of the documents asked for and come to a conclusion whether non-supply of the documents has affected the detenu's right to make an effective representation or not."

EMPHASIS SUPPLIED BY COURT)

21. In the case of Sunil Pandurang Parkar (supra), the detenu had made a request in his representation for documents in support of the averment that the detenu belonged to Arun Gavali gang so that he can make an effective representation and the said documents were not supplied by the State Government. In the case of Sunil Pandurang Parkar, the State Government in its reply, asked the advocate for the petitioner to contact the detaining authority i.e. Commissioner of Police Brihan Mumbai. In the said case, it was contended that once the vital documents were asked for, it was the duty of the detaining authority to furnish the copies of those documents and the detaining authority cannot ask the detenu to go from authority to authority. However, in the said decision, this Court has observed that it is not necessary to supply each and every document for which a request has been made but it is necessary to supply only vital documents. Whether it is a vital document which would affect the right of the detenu to make an effective representation would depend on the facts and circumstances of the case. Thus, it is clear that non-furnishing of each and every document would not affect the right of the detenu to make an effective/representation, but it is only non-supply of a vital document which would affect the right of the detenu to make an effective representation. As stated above, Mr. Tripathi, the learned counsel for the detenu has restricted his contention to only four documents which have been mentioned by us in para 14. We have already observed that none of these four documents are vital documents in the facts and circumstances of the present case and hence, it was not necessary to supply any of the said documents to the detenu. The non-supply of any or all of these four documents cannot be said to have affected the right of the detenu to make an effective representation. In this view of the matter, non-supply of any of the said documents would not vitiate the order of detention. Thus, there is no merit in any of the contentions raised on behalf of petitioner.

22. In view of the above, there is no substance in this petition and the petition is dismissed. Rule is discharged.

Parties be given copies of this order duly authenticated by Sheriatedar of this Court.