Bombay High Court
Naeem Abdulla Khan vs The Commissioner Of Police And Ors on 18 November, 2016
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2312 OF 2016
Naeem Abdulla Khan
Age 38 Years, residing at Room No. 7,
Mujahid Chawl, Gulshan Nagar,
Jogeshwari (W), Mumbai - 400 102. .. Petitioner
(Brother of the detenu)
Versus
1. The Commissioner of Police
Mumbai.
2. The State of Maharashtra
(Through Addl. Chief Secretary to
Government of Maharashtra (Home),
Home Department, Mantralaya,
Mumbai.
3. The Superintendent
Nashik Road Central Prison,
Nashik. .. Respondent
...................
Appearances
Mr. Udaynath Tripathi Advocate for the Petitioner
Ms. M.H. Mhatre APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ.
RESERVED ON : OCTOBER 26th, 2016.
PRONOUNCED ON : NOVEMBER 18th, 2016
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard learned counsel for the parties.
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2. The petitioner who is the brother of the detenu -
Sanaullah Abdul Khan has preferred this petition questioning
the preventive detention order passed against him on
23.12.2015 by Commissioner of Police, Brihan Mumbai. The
said detention order has been passed in exercise of the
powers under Section 3(1) of the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug-
offenders and Dangerous Persons Act, 1981 ('MPDA Act' for
short) as the detenu is a dangerous person whose activities
are prejudicial to the maintenance of public order. The order
of detention is based on one C.R. i.e C.R. No. 402/2015 and
two in-camera statements of witnesses "A" and "B". The
order of detention, grounds of detention along with
accompanying documents were served on the detenu on
23.12.2015.
3. Though a number of grounds have been raised in the
present petition whereby the detention order has been
assailed, however, the learned counsel appearing for the
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petitioner has pressed only three grounds before us. The
said grounds are ground Nos. 8(b), 8(e) and 8(f).
4. The first ground i.e ground 8(b), briefly stated, is that
the detenu was already in judicial custody in C.R. No.
402/2015 as his bail application was rejected by the Sessions
Court. Thereafter, the detenu had not preferred any
application for bail. In such case, the detaining authority has
not disclosed any material to come to the conclusion that
there is imminent / real possibility of his release on bail.
There is no compelling necessity to detain a person when he
is already in custody. This shows total non-application of
mind of the detaining authority. The order is illegal since the
satisfaction recorded is illegal, hence, detention order is
liable to be quashed and set aside. In view of the contention
raised by Mr. Tripahti, we proceed to examine whether there
was reliable material before the detaining authority on the
basis of which he had reason to believe that it is likely that
the detenu would be released on bail.
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5. As far as the above ground is concerned, the detaining
authority in the grounds of detention had showed his
awareness that the detenu was in custody. The detaining
authority in paragraph 7 of the grounds of detention has
further stated as under :-
" ....... I am aware that as on today, you are not granted bail
in connection with Oshiwara Police Station C.R. No. 402/2015.
You had made a bail application in the Hon'ble Sessions Court
which was rejected. Now that you have been charge-sheeted
and there is likelihood for you being offered bail in this case.
Since the offence is not punishable with death penalty or life term
imprisonment, you are likely to be released on bail in the
aforesaid case also and you may avail of the bail facility and will
be a free person. In view of your tendencies and inclinations
reflected in the offences committed by you as stated above, I am
further satisfied that after your being granted bail and after
release on bail and your becoming a free person and in the event
of your being at large, you being a criminal, are likely to indulge
in activities prejudicial to the maintenance of public order in
future and that with a view to prevent you from acting in such a
prejudicial manner in future, it is necessary to detain you......."
The above mentioned portion which is found in
paragraph 7 of the grounds of detention leaves no manner of
doubt that the detaining authority was fully aware of the fact
that the detenu was in custody in C.R. No. 402/2015. The
said case is mainly under Section 394 of IPC. The said
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offence is not punishable with death but the said offence is
punishable with life imprisonment or imprisonment upto 10
years. This means that punishment ranging from one day to
10 years can be imposed. The detaining authority in
paragraph 5(a)(viii) has showed his awareness that the
charge-sheet has been filed in C.R. No. 402/2015. It is well
known that once the charge-sheet is filed, an application for
bail can be made before the Sessions Court or a person can
also move the High Court against the order of Sessions Court
rejecting the application for bail. In the present case, the
facts relating to C.R. No. 402/2015 are that on 18.9.2015 at
01.30 p.m., the detenu stopped the complainant and abused
him. The detenu then slapped the complainant. The detenu
then whipped out a knife and again abused the complainant
and snatched away cash of about Rs. 900/- from the shirt
pocket of the complainant. Thereafter, the detenu pushed
the complainant on the ground due to which the complainant
received abrasions. If the facts relating to C.R. No. 402/2015
are seen, it becomes quite evident that once the charge-
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sheet is filed, it is a case in which normally bail would be
granted. In any event, normally in any offence of such nature
after the investigation is over and the charge sheet is filed,
bail is normally granted as the offence is not compulsorily
punishable with death or life imprisonment. Thus, it cannot
be said that there was no material before the detaining
authority to come to the conclusion that there was every
likelihood of the detenu being released on bail in C.R. No.
402/2015 as contended in the ground raised by the
petitioner.
6. While considering the possibility whether bail can be
granted, the nature of offence has also to be seen i.e type of
crime. The detenu was in custody in C.R. No. 402/2015
which is a case which was mainly under Section 394 of IPC.
We have already set out the facts relating to this C.R. in the
earlier paragraph. Looking to the facts of the case, the
apprehension of the detaining authority that there was every
likelihood of the detenu being released on bail cannot be
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faulted. In view of the facts relating to C.R. No. 402/2015,
the fact that the investigation was over and the charge-sheet
was filed and the punishment which can be imposed for the
said offence, it cannot be said that there was no cogent and
tangible material before the detaining authority to arrive at
its subjective satisfaction that there was every likelihood of
the detenu being released on bail. Further granting of bail in
such case after filing of the charge sheet is a normal practice
of most of the Courts. A priori, it cannot be argued that this
is a case of mere ipse dixit of the detaining authority
regarding the likelihood of the detenu being released on bail.
Thus, there was reliable material before the detaining
authority on the basis of which, the detaining authority would
have reason to believe that it was likely that the detenu
would be released on bail.
7. Learned counsel for the petitioner placed reliance on
the decision of the Supreme Court in the case of A. Shanthi
(Smt) Vs. Govt. of T.N. & Ors.1 . Mr. Tripathi pointed out
1 (2006) 9 SCC 711
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that in the said case also, the detenu was in custody and his
bail applications had been rejected. The detaining authority
in the said case observed that the detenu had moved an
application for bail which was dismissed and the detaining
authority had further stated that the detaining authority was
aware that there is eminent possibility of the detenu coming
out on bail by filing another application before the Sessions
Court
or High Court since in similar cases, bail is granted
after a lapse of time. In the case of A. Shanthi (supra), not
one bail application but many bail applications had been
moved by the detenu which had been rejected. In the
present case, only one bail application was filed which was
rejected that too, before filing of the charge sheet.
8. From the fact that many bail applications were rejected
in the case of A. Shanthi (supra), it appears that the offence
was serious in nature which is not so in the present case.
From the material available on record which was before the
detaining authority, it can be said that the detaining
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authority had enough reason to be subjectively satisfied that
there was likelihood that the detenu would be released on
bail. Thus, the decision in the case of A. Shanthi (supra)
would not apply to the facts of the present case.
9. Thereafter, reliance was placed by Mr. Tripathi on the
decision of the Supreme Court in the case of Rajesh Gulati
Vs. Govt. of NCT of Delhi & Anr.2. Mr. Tripathi pointed
out that in the said case, the detenu was in custody when
the detention order was passed. The detaining authority
recorded its subjective satisfaction that there was likelihood
of the detenu being released on bail "as bail is normally
granted in such case" and if granted bail, the detenu would
again indulge in smuggling activities by travelling abroad.
The Supreme Court observed that it cannot be said that it
was a normal case because the detenu in the case of Rajesh
Gulati (supra) had preferred five applications for bail which
had been rejected. In addition, the detenu's passport was in
custody of the Customs Authorities in which case, it would
2 2002 SCC (Cri) 627
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not have been possible for the detenu to travel abroad and
indulge in smuggling activities. In the present case, only one
application had been preferred by the detenu that too when
the investigation was going on and charge-sheet had not
been filed. After filing of the charge-sheet, the detenu could
have again approached the Sessions Court or could have
even moved before the High Court against the earlier
rejection of bail by the Sessions Court. Looking to the nature
of the offence in which the present detenu is involved and
the fact that it was not punishable only with life
imprisonment or death and if found guilty, any punishment
could be imposed on the detenu upto a period of 10 years,
the case of the detenu cannot be equated with the case of
Rajesh Gulati (supra).
10. The detention order in the case of Rajesh Gulati (supra)
was quashed on two grounds. One of the main grounds was
that the passport of the detenu was in custody of the
Customs Authorities, hence, it was felt that there was no
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reliable material before the detaining authority to come to
the conclusion that the detenu, if released, would again
indulge in similar prejudicial activities of smuggling. This is
what weighed heavily with the Court while quashing the
detention order, such are not the facts in the present case.
In the present case, the facts relating to C.R. No. 402/2015
are such that there is enough material to come to the
conclusion that bail would be granted in the near future.
11. Thereafter, Mr. Tripathi placed reliance on the decision
of the Supreme Court in the case of Rivadeneyta Ricardo
Agustin Vs. Government of the National Capital
Territory of Delhi & Ors.3. Mr. Tripathi placed reliance on
paragraph 7, 8, 10 and 11 of the said decision which read
thus:-
7. In the grounds of detention, the following statement occurs
in para 9 :
"The Administrator of the National Capital Territory of Delhi is
aware that you are in judicial custody and had not moved any
bail application in the Court(s) after June 9, 1992 but nothing
3 1994 Supp (1) SCC 597
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prevents you from moving bail applications and possibility of your
release on bail cannot be ruled out in the near future. Keeping in
view your modus operandi to smuggle gold into India and
frequent visits to India, the Administrator of the National Capital
Territory of Delhi is satisfied that unless prevented you will
continue to engage yourself in prejudicial activities once you are
released."
8. The above statement merely speaks of a "possibility" of the
detenu's release in case he moves a bail petition. It neither says
that such release 'was likely' or that it was imminent. Evidently,
the statement falls short of the requirement enunciated by this
Court in Kamarunissa. ig Even in the return filed in this petition,
the authority has not stated (in response to Ground 'B' of the writ
petition) that there was material before him upon which he was
satisfied that the petitioner was likely to be released or that such
release was imminent.........."
9. .........................
10. The learned Additional Solicitor-General placed before us the
relevant file but he could not bring to our notice any material
indicating that the release of the petitioner was likely or that there
was a real possibility of his being released and/or that the
authority was satisfied about the said aspect.
11. In the circumstances, we must hold that the principle
enunciated by this Court in Kamarunnissa v. Union of India
squarely applies and the order is liable to be quashed......."
In the case of Agustin (supra), it was not stated that the
release of the detenu was likely or that it was eminent,
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hence, it was felt that the statement falls short of the
requirement enunciated by the Supreme Court in the case of
Kamarunissa (supra), however, in the present case, the
detaining authority has clearly stated in paragraph 7 of the
grounds of detention that the detenu is "likely" to be
released on bail in the aforesaid case. Not only in the
grounds of detention but in the reply also, the detaining
authority has shown its awareness that the detenu was in
custody and his bail application was rejected on 20.10.2015.
Thereafter, the charge-sheet was filed in C.R. No. 402/2015
on 19.11.2015. The entire charge-sheet relating to C.R. No.
402/2015 was placed before the detaining authority. The
detaining authority had gone through the entire charge-
sheet and the nature of allegations made against the detenu
in the charge-sheet. On the basis of the material placed
before the detaining authority and as the offence was not
punishable with death penalty or life imprisonment only, the
detaining authority averred in the affidavit that in such
circumstances, there was every likelihood that the detenu
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would be released on bail.
12. The Supreme Court in an earlier decision in the case of
Kamarunnissa Vs. Union of India 4 has discussed the law
relating to when a detention order can be passed when the
detenu is in custody. Paragraph 13 of the said decision
reads thus:
"13.
From the catena of decisions referred to above it seems
clear to us that even in the case of a person in custody a
detention order can validly be passed (1) if the authority passing
the order is aware of the fact that he is actually in custody; (2) if
he has reason to believe on the basis of reliable material placed
before him (a) that there is a real possibility of his being released
on bail, and (b) that on being so released he would in all
probability indulge in prejudicial activity and (3) if it is felt
essential to detain him to prevent him from so doing. If the
authority passes an order after recording his satisfaction in this
behalf, such an order cannot be struck down on the ground that
the proper course for the authority was to oppose the bail and if
bail is granted notwithstanding such opposition, to question it
before a higher court. What this Court stated in the case of
Ramesh Yadav was that ordinarily a detention order should not
be passed merely to pre-empt or circumvent enlargement on bail
in cases which are essentially criminal in nature and can be dealt
with under the ordinary law. It seems to us well settled that even
in a case where a person is in custody, if the facts and
circumstances of the case so demand, resort can be had to the
4 (1991) 1 SCC 128
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law of preventive detention. This seems to be quite clear from
the case law discussed above and there is no need to refer to the
High Court decisions to which our attention was drawn since they
do not hold otherwise. We, therefore, find it difficult to accept the
contention of the counsel for the petitioners that there was no
valid and compelling reason for passing the impugned orders of
detention because the detenus were in custody".
In the present case, the criteria as set out in paragraph
13 of Kamarunnissa (supra) is met with. Thus, as far as
ground 8(b) is concerned, we find no merit in the said
ground.
13. Thereafter, Mr. Tripathi raised the second ground which
is found in ground 8(e) of the petition. In the said ground, it
is stated that incorrect translation of injury certificate of the
injured in C.R. No. 402/2016 has been furnished to the
detenu. The said document is vital document and also
relied upon by the detaining authority. As wrong translation
of the said document has been furnished to the detenu, his
right to make an effective representation is violated, hence,
the detention order is vitiated.
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14. To support the above contention, reliance was placed
by Mr. Tripathi on two decisions of this Court. The first
decision is in the case of Yogesh Nandu Pujari Vs.
Commissioner of Police, Thane & Ors.5. Mr. Tripathi
pointed out that in the said case, Marathi translation of
English documents were supplied to the detenu and as there
was discrepancy and variations between the two versions,
this Court held that the right of detenu to make an effective
representation was affected, hence, the detention order was
held to be illegal and was quashed.
We have carefully gone through the said decision. In
the said case, it was argued by the learned prosecutor that
the injury certificate was not relied upon document, hence,
the same cannot be considered as a vital document, hence,
it cannot be said that the detenu was deprived of making an
effective representation, however, in paragraph 6, the Court
observed that the detaining authority had in fact relied upon
the injury certificate to arrive at his subjective satisfaction
relating to issuance of the order of detention. The Court
5 2013 ALL MR (Cri) 1779
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came to this conclusion based on paragraph 1 of the grounds
of detention which read as under:-
" ...... The copies of documents placed before me on which I
relied upon and formed by subjective satisfaction, are enclosed,
except the names and identifying particulars of witnesses/victims
in connection with the grounds as mentioned in para No. 5(a)(i)
and (ii) below, which are not furnished to you in the public
interest for which I claim privilege."
[ emphasis supplied ]
This Court in the case of Yogesh Pujari (supra) observed
that the detaining authority himself has stated that the
documents were relied upon for forming his subjective
satisfaction that it is imperative to detain the detenu. As the
document was relied upon by the detaining authority to
arrive at his subjective satisfaction, it was held that it was a
vital document, hence, furnishing of wrong translation of a
document relied upon by the detaining authority would
certainly affect the right of the detenu to make an effective
representation. In the present case, neither does the
affidavit of the detaining authority state that the injury
certificate was relied upon document nor do the grounds of
detention state so. In fact, in paragraph 1 of the grounds of
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detention, it is stated that the copies of the documents
placed before me are enclosed. We have carefully gone
through the grounds of detention and we find that there is no
reference therein to the injury certificate. From the very fact
that there is no reference to the injury certificate in the
grounds of detention, it can be seen that the document was
not relied upon by the detaining authority to issue the order
of detention. As the injury certificate was not relied upon by
the detaining authority in the present case, the decision in
the case of Yogesh Pujari (supra) would not apply to the facts
of the present case.
15. The Supreme Court in the case of Ibrahim Ahmad
Batti Alias Mohd. Akhtar Hussain Alias Kandar Ahmed
Wagher Alias Iqbal Alias Gulam Vs. State of Gujarat &
Ors.6 has held that it is for the Court to decide whether the
document is relevant or not. We have carefully perused the
injury certificate and we find that in the facts and
circumstances of this case, the said document cannot be said
6 AIR 1982 SC 1500
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to be a relevant or vital document. In the present case, it is
not the nature of injuries on which the detention order has
been passed but the detention order is based only on the
activities of the detenu as mentioned in the three incidents.
16. The second decision relied upon by Mr. Tripathi relating
to the ground of furnishing wrong translation is the decision
of this Court in the case of Sandip Suresh Ghag Vs. The
Commissioner of Police, Mumbai & Ors.7. Mr. Tripathi
pointed out that in the said case as wrong translation of
injury certificate was furnished to the detenu, the detention
order was quashed. On going through the decision in the
case of Sandip Ghag (supra), specially paragraph 7 thereof,
we find that in the case of Sandip Ghag (supra), the
detaining authority had categorically stated in its reply that
the material relied upon by him for issuing the order of
detention has been furnished to the detenu. In view of this
fact, the Court came to the conclusion that the said
document was relied upon by the detaining authority to form
7 2014 ALL MR (Cri) 707
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his subjective satisfaction. In the present case, as stated
earlier, the detaining authority nowhere in his reply has
stated that he had relied upon the injury certificate to form
his subjective satisfaction relating to issuance of detention
order. Neither the reply of the detaining authority nor the
grounds of detention show that the injury certificate was
relied upon in any manner by the detaining authority to
arrive at its subjective satisfaction that it was necessary to
issue the order of detention.
17. At this juncture it is also necessary to note that such of
those documents which are not material and to which a
casual or passing reference is made in the grounds, need not
be supplied. In Mst. L.M.S. Ummu Saleema v. Shri B.B.
Gujaral and Anr.8 after referring to some of the earlier
decisions, the Supreme Court held as under :
It is, therefore, clear that every failure to furnish copy of a
document to which reference is made in the grounds of
detention is not an infringement of Article 22(5), fatal to the
order of detention. It is only failure to furnish copies of such
documents as were relied upon by the detaining authority,
8 [1981] 3 SCR 647
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making it difficult for the detenu to make an effective
representation, that amounts to a violation of the
fundamental rights guaranteed by Article 22(5). In our view
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.
18. The Supreme Court in the case of Abdul Sathar
Ibrahim Manik Vs. Union of India & Ors. 9 has observed
that failure to supply each and every document merely
referred to and not relied upon will not amount to
infringement of the rights guaranteed under Article 22(5) of
the Constitution. It was further observed that whether the
document is casually or passingly referred to or whether it
has also formed the material for arriving at the subjective
satisfaction, depends upon the facts and grounds in each
case. In the instant case, we are satisfied that the injury
certificate was not relied upon by the detaining authority to
issue the order of detention.
9 AIR 1991 SC 2261
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19. We have also observed that the two decisions relied
upon by Mr. Tripathi are the decisions of this Court whereas
the Supreme Court in various decisions have stated that non-
furnishing of documents which are not referred to or relied
upon by the detaining authority would not vitiate the
detention order. Non-furnishing of correct translation would
amount to non-supply of the document. The Supreme Court
in the case of Syed Farooq Mohammad Vs. Union of
India and Anr.10 has observed that when a document is
neither considered by the detaining authority nor referred to
by the detaining authority, non-supply of such document
does not cause prejudice and would not vitiate the order of
detention. The Supreme Court in the case of Abdul Sathar
Ibrahim Manik Vs. Union of India has observed that when a
document is not relied upon by the detaining authority, non-
supply of such a document would not vitiate the order of
detention.
10 AIR 1990 SC 1597
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20. Moreover, the decisions of the Supreme Court in the
case of Syed Farooq, Abdul Sathar Manik and Mst. L.M.S.
Ummu Saleema (supra) were not pointed out to the Division
Bench of this Court in the case of Yogesh Pujari and Sandip
Ghag, hence, the Division Bench did not have the benefit of
going through the same before arriving at its decision.
21.
The last ground raised by Mr. Tripathi is ground 8(f). In
the said ground, it is stated that the representation of the
detenu was submitted to the State Government on
27.6.2016 by the lawyer of the petitioner by speed post,
however, till filing of the petition (30.6.2016), no
communication was received, hence, the State Government
is called to explain the delay to the satisfaction of the Court
failing which the continued detention would be illegal.
22. The said ground has been replied by the State
Government by filing affidavit of the Deputy Secretary, Home
Department (Special), Mantralaya, Mumbai. In the said
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affidavit, it is stated that the representation of the detenu
was received in the MPDA desk on 4.7.2016. On the same
day, by letter dated 4.7.2016, the remarks were called for
regarding the representation of the detenu. The said
remarks were received on 14.7.2016. The office of the
Detaining Authority was closed on 6.7.2016, 9.7.2016 and
10.7.2016 being public holiday, Saturday and Sunday
respectively.
The concerned Assistant submitted the file
containing remarks of the Detaining Authority along with
representation of the detenu to the Section Officer on
14.7.2016. The Section Officer endorsed it on 14.7.2016 and
forwarded it to the Deputy Secretary. The Deputy Secretary
endorsed it on 15.7.2016 and forwarded it to the Additional
Chief Secretary (Home) on the same day. The Additional
Chief Secretary (Home) considered the representation of the
detenu and the remarks of the Detaining Authority and has
rejected the representation on 15.7.2016 by applying his
mind. The rejection of representation was communicated to
the detenu vide letter dated 15.7.2016.
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23. The Affidavit of the Home Department shows that the
parawise remarks were called on the representation by letter
dated 4.7.2016 and the said remarks were received on
14.7.2016. As far as the period from 4.7.2016 to 14.7.2016
is concerned, the same is explained by the sponsoring
authority. Shri. Subhash Abasaheb Khanvilkar, Senior
Inspector of Police, Oshiwara Police Station, Mumbai who is
the sponsoring authority, in his affidavit, has stated that the
representation dated 27.6.2016 was received on 4.7.2016 at
6.00 p.m. in the office of the Commissioner of Police. The
same was immediately forwarded to the Inspector of Police
(Preventive Branch), C.I.D., Mumbai to forward the said
representation to Oshiwara Police Station, Mumbai i.e the
sponsoring authority for its parawise comments. The
representation was collected by the officer of Oshiwara
Police Station on 4.7.2016 at 7.15 p.m. from the office of
Preventive Crime Branch, C.I.D., Mumbai. Shri. Subhash
Khanvilkar, the Senior P.I. of Oshiwara Police Station, in his
affidavit, has further stated that on 5.7.2016, he personally
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went through the representation and gave dictation of
parawise comments on the representation. On 6.7.2016,
there was a public holiday. The parawise comments were
kept ready on 7.7.2016. On 7.7.2016, the parawise
comments were forwarded to the Assistant Commissioner of
Police, D.N. Nagar Division for his consideration. On
8.7.2016, the Assistant Commissioner of Police forwarded the
parawise comments to the Deputy Commissioner of Police,
Zone - IX for his perusal and consideration. On the same
day, the Deputy Commissioner of Police, Zone - IX has
forwarded the comments to the Deputy Commissioner of
Police, PCB CID to submit it before the appropriate authority.
After the parawise comments were received by PCB CID, the
same was placed before the Law Officer for his perusal. The
concerned Law Officer has checked the parawise comments
and after finalizing the same, on 13.7.2016, the same was
forwarded to the Additional Chief Secretary, Home
Department, Mumbai. On 9.7.2016 and 10.7.2016, the office
was closed due to second Saturday and Sunday. Thus, it is
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seen that the representation was dealt with at the earliest.
24. Mr. Tripathi submitted that first of all, it was not
necessary to call for parawise comments because of that
about ten days time was lost in obtaining the parawise
comments. He further submitted that after the parawise
comments were called, the file had been travelling from
table to table for a period of about 10 days. He submitted
that the representation was received by the Sponsoring
Authority on 4.7.2016. On 5.7.2016, the representation was
considered by the Senior P.I. of Oshiwara Police Station i.e
sponsoring authority. Thereafter, the file was put up before
the Assistant Commissioner of Police. Thereafter, before the
Deputy Commissioner of Police Zone - IX. Thereafter, the file
travelled to the Deputy Commissioner of Police, PCB CID.
Thereafter, the file was placed before the Law Officer.
Thereafter, it was forwarded to the Additional Chief
Secretary, Home Department and it was rejected on
15.7.2016. Mr. Tripathi submitted that it was totally
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unnecessary for the representation to travel from table to
table for a period of almost 10 days when it was the
Additional Chief Secretary who was the only authority to
consider the representation. He submitted that on account
of the file travelling from table to table, inordinate delay was
caused in considering the representation and on this count,
the detention order is liable to be quashed. To support his
contention, he placed reliance on the decision of the
Supreme Court in the case of Harish Pahwa Vs. State of
U.P.11 wherein it is observed as under:-
" In our opinion, the manner in which the representation
made by the appellant has been dealt with reveals a sorry state
of affairs in the matter of consideration of representations made
by persons detained without trial. There is no explanation at all
as to why no action was taken in reference to the representation
on 4th, 5th and 25th of June, 1980. It is also not clear what
consideration was given by the Government to the representation
from 13th June, 1980 to 16th June, 1980 when we find that it
culminated only in a reference to the Law Department, nor it is
apparent why the Law Department had to be consulted at all.
Again, we fail to understand why the representation had to travel
from table to 'table for six days before reaching the Chief Minister
who was the only authority to decide the representation. We may
make it clear, as we have done on numerous earlier occasions,
11 AIR 1981 SC 1126
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that this Court does not look with equanimity upon such delays
when the liberty of a person is concerned. Calling comments
from other departments, seeking the opinion of Secretary after
Secretary and allowing the representation to lie without being
attended to is not the type of action which the State is expected
to take in a matter of such vital import. We would emphasize that
it is the duty of the State to proceed to determine representations
of the character above mentioned with the utmost expedition,
which means that the matter must be taken up for consideration
as soon as such a representation is received and dealt with
continuously (unless it is absolutely necessary to wait for some
assistance in connection with it) until a final decision is taken and
communicated to the detenu. This not having been done in the
present case we have no option but to declare the detention
unconstitutional. We order accordingly, allow the appeal and
direct that the appellant be set at liberty forthwith."
(Emphasis supplied)
Mr. Tripathi submitted that similar view was taken by
this Court in the case of Riyaz Ahmed Batatawala Vs The
State of Maharashtra & Ors.12.
25. Thereafter, Mr. Tripathi relied on the decision of the
Supreme Court in the case of R. Paulsamy Vs. Union of
India & Anr.13. Mr. Tripathi relied on paragraph 6 of the
decision which reads thus:-
12 2016 ALL MR (Cri) 2784
13 1999 CRI.L.J. 2897
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" Examining the present case in hand, in the light of the
ratio laid down above, we find that though the representation
was received on 28.10.1998, comments of Sponsoring Authority
were called for on 29.10.1998 which were received on
10.11.1998. From the records we find that the order for calling
for comments of the Sponsoring Authority was not passed by any
of the Officers empowered by the above orders of Minister dated
7th July, 1995. Therefore, we hold that the representation was
dealt with in a routine manner and there was no application of
mind by the competent officer as to whether it was necessary to
call for comments of the Sponsoring Authority. In other words,
this delay from 28.10.98 to 10.11.98 being uncalled for has to be
regarded as unreasonable and, therefore, fatal in view of the
ratio laid down by this Court in Venmathi Selvarm (Mrs.) (1998(5)
SCC 510)."
26. In reply, the learned APP submitted that the decision of
the Supreme Court in the case of Paulsamy was referred to a
bench of three Judges to examine the correctness of the
decision in the case of Paulsamy. A bench of three Judges of
the Supreme Court examined the correctness of the decision
in the case of Paulsamy in the case of Kantilal Hirji Shah
Vs. State of T.N. & Ors. 14. After considering the decision
in the case of R. Paulsamy, in the case of Kantilal Hirji Shah,
14 (2000) 7 SCC 606
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it was observed in paragraph 4 as under:-
" ...........
It appears to us that the very fact that on receipt of the
representation a comment was sought for from the sponsoring
authority by an officer who had not passed the order of detention
was itself treated to be the grounds for the conclusion that the
representation has been dealt with in a routine manner and there
was no application of mind by the competent officer. We cannot
subscribe to the aforesaid conclusion expressed by the learned
Judges in the aforesaid case. When a representation is received
in the department of the concerned authority it is not necessary
for the authority to whom the representation is made, himself to
make entry in the diary and immediately deal with the matter
without taking the assistance of any other subordinate officers. A
detenu under Article 22(5) has a right that his representation
should be considered by the appropriate authority as
expeditiously as possible and there should not be unexplained
delay in the matter of disposal of the representation. A
Subordinate Officer calling for comments from any other authority
does not, in fact, deal with the representation nor does it express
any view on the representation and acts clerically only to get the
necessary comments for being considered by the persons on
whom the power to dispose of the representation vest. That
being the position, and taking into account the system through
which the Government functions, it is difficult for us to sustain the
conclusion of this Court in Paulsamy's case in paragraph 6
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quoted above. In our view, therefore, the fact that on receipt of
the representation, the Joint Secretary of the department called
for the comments of the sponsoring authority immediately and on
receipt of the same had forwarded to the higher authority which
was dealt with by the appropriate authority, would not constitute
any infringement of the constitutional right of the detenu under
Article 22(5) nor it can be said that the representation has been
dealt with mechanically without application of mind. We therefore
hold that the law laid down by this Court in aforesaid case is not
correct."
[ Emphasis supplied ]
Thus, from the decision in the case of Kantilal Hirji Shah
which is by a bench of three Judges, it is clear that calling for
parawise comments is not a futile exercise and the file
travelling from table to table or from officer to officer and
the time involved for the file travelling from table to table
cannot be said to be unnecessarily delay in considering the
representation. On account of the system through which the
Government functions, it is necessary for the file to travel
from table to table i.e from junior officer to the topmost
officer. The Supreme Court in the case of Kantilal Hirji Shah
(supra) has categorically observed that the law in the case of
R. Paulsamy is not correct. Thus, the decision in the case of
Paulsamy cannot be of any help to the petitioner.
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27. The decision in the case of Harish Pahwa (supra) is a
decision by a bench of two Judges of the Supreme Court.
The decision in the case of Kantilal Hirji Shah which is by a
larger bench than the one in the case of Harish Pahwa is a
complete answer to the decision in the case of Harish Pahwa.
It has been clearly held in the case of Kantilal Hirji Shah in
paragraph 3 that calling for reports from sponsoring
authority is absolutely necessary for effective disposal of the
representation. It is also held that on account of the system
through which the Government functions, files travel from
table to table and this period consumed in the file travelling
from table to table would not constitute any infringement of
the constitutional right of the detenu under Article 22(5) nor
can it be said that the representation has been dealt with
mechanically without application of mind. We are bound by
the decision of the larger bench in the case of Kantilal Shah.
In view of this decision, we are afraid we cannot place any
reliance on the decision in the case of Harish Pahwa.
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28. Mr. Tripathi also placed reliance on a decision of this
Court in the case of Riyaz Ahmed Batatawala Vs. The
State of Maharashtra & Ors.15. In the said decision,
reliance was placed on the decision of the Supreme Court in
the case of Harish Pahwa (supra). We have already observed
that in view of the decision of the larger bench of the
Supreme Court in the case of Kantilal Hirji Shah (supra), the
decision in the case of Harish Pahwa cannot be relied upon.
In the decision in the case of Riyaz Batatawala, reliance was
placed on the decision in the case of Rama Dhondu Borade
Vs. V.K. Saraf, Commissioner of Police & Ors. 16. This
decision in relation to delay in considering representation
was considered by the Supreme Court in a later decision in
the case of Noor Salaman Makani Vs. Union of India &
Ors.17. In the case of Rama Dhondu Borade, the gap
between receipt and disposal of the representation was 28
days. The only explanation given in the said case for the
delay was that some more information was called for and
15 2016 ALL MR (Cri) 2784
16 (1989) 3 SCC 173
17 (1994) 1 SCC 381
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there was certain holidays in between, hence, the Court held
that the delay was unreasonable and the explanation was
unsatisfactory, hence, the detention order was quashed.
29. The Supreme Court in the case of Noor Salaman
Makani, after considering the decision in the case of Rama
Dhondu Borade observed that there was only unexplained
delay of five days
ig in considering the representation and
delay of five days could not be said to be undue. By
observing thus, the contention on behalf of the detenu that
on account of the delay in considering the representation,
the detention order ought to be quashed was rejected.
30. As stated earlier, Mr. Tripathi also placed reliance on
the decision in the case of Riyaz Batatawala (supra), this
Court held in paragraph 9 that there was no explanation as
to why the sponsoring authority did not submit parawise
comments from 14.2.2014 till 25.2.2014. Thus, the delay in
submitting parawise comments is not satisfactorily explained
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in the affidavit, therefore, continuation of the order of
detention stands vitiated. However, such are not the facts in
the present case. In the present case, the sponsoring
authority has explained the time period involved in
submitting the parawise comments. Thus, this decision would
be of no help to the petitioner. Moreover, in Riyaz
Batatawala, reliance was placed on Harish Pahwa and Rama
Borade. The decision in the case of Rama Borade and Harish
Pahwa are by a bench of two Judges. The decision of the
Supreme Court in Kantilal Shah is by a bench of three Judges.
The decision in the case of Rama Borade was considered by
the Supreme Court in Noor Salman Makani, hence, the
decision in the case of Noor Salman Makani would prevail.
Thus, both these decisions i.e in the case of Harish Pahwa
and Rama Borade, in view of the enunciations of the
Supreme Court in Kantilal Shah & Noor Salman Makani,
cannot come to the aid of the petitioner.
31. As stated earlier, the enunciation of law by the
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Supreme Court in the case of R. Paulsamy was held to be
incorrect in the case of Kantilal Hirji Shah (supra). In the
case of Kantilal Hirji Shah, it was observed that in the
functioning of the Governmental system, it would be
necessary for the officers who was subordinate to the
authority empowered to consider the representation to call
for some information from others without which the
representation of the detenu possibly cannot be disposed of
effectively and so long as these officers cannot take any
decision on their own, it cannot be said that there has been
an infringement of detenu's right under Article 22(5) merely
because a subordinate officer called for some report from the
sponsoring authority or any other appropriate authority. In
the case of Kantilal Hirji Shah, it was further observed that in
the functioning of the Governmental system, the file
necessarily transfers from table to table before it is finally
considered by the authority empowered to consider the
representation. At this juncture, we would like to refer to the
decision of the Supreme Court in the case of Kamarunnissa
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Vs. Union of India18 wherein it is observed in paragraph 7
as under:-
" The contention that the views of the sponsoring authority were
totally unnecessary and the time taken by that authority could
have been saved does not appeal to us because consulting the
authority which initiated the proposal can never be said to be an
unwarranted exercise."
32. In order to appreciate whether there was delay in
considering the representation in the present case, we give
datewise details for easy reference. The dates are taken
from the affidavit filed by Shri. Suresh Mahadev Khade,
Deputy Secretary, Government of Maharashtra, Home
Department (Special) and Shri. Subhash Abasaheb
Khanvilkar, Senior Inspector of Police, Oshiwara Police
Station, Mumbai (Sponsoring Authority).
Representation received in MPDA Desk 04.07.2016
Remarks called on the representation. 04.07.2016
Representation received by Oshiwara Police Station 04.07.2016
(Sponsoring Authority) at
07.15 p.m.
Dictation in relation to parawise comments given by 05.07.2016
Senior P.I. of Sponsoring Authority
Public Holiday 06.07.2016
Parawise comments on representation kept ready and 07.07.2016
forwarded to Assistant Commissioner of Police
18 (1991) 1 SCC 128
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Assistant. Commissioner of Police forwarded the 08.07.2016
parawise comments to Deputy Commissioner of Police,
Zone - IX.
Deputy Commissioner of Police, Zone - IX forwarded 08.07.2016
the parawise comments to the Deputy Commissioner of
Police, PCB CID
Holidays 09.07.2016
&
10.07.2016
Law Officer checked and finalized the parawise 13.07.2016
comments and forwarded to the Home Department
Received by Home Department, Mantralaya. 13.07.2016
The concerned Assistant in Home Department 14.07.2016
submitted the file to the Section Officer.
Section Officer endorsed it and forwarded to the Deputy
ig 14.07.2016
Secretary.
Deputy Secretary endorsed it and forwarded it to the 15.07.2016
Additional Chief Secretary (Home).
Representation rejected by Addl. Chief Secretary
(Home) 15.07.2016
Communication sent to the detenu regarding rejection 15.07.2016
of representation.
From the above dates, it is clear that there is no
explanation only for two dates i.e 11.7.2016 and 12.7.2016.
The Supreme Court in the case of Noor Salman Makani
(supra) has held in paragraph 4 that unexplained delay of
five days cannot be said to be undue. In the present case,
unexplained delay is only of two days in which case it cannot
be said that the representation was not dealt with
reasonable dispatch. The above dates clearly indicate as to
how the detenu's representation has been dealt with day to
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day till it was finally disposed of on 15.7.2016. Taking into
account the above dates and the intervening holidays, we
hold that the representation has been dealt with utmost
expedition and there has been no undue delay in the matter
of disposal of representation of the detenu.
33. In view of the above, in our opinion, the grounds raised
by the learned counsel for the petitioner to espouse the case
of the detenu, are of no avail. Accordingly, the petition is
dismissed. Rule is discharged.
[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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