Bombay High Court
Dattatraya Chandrakant Kakade vs The District Magistrate And Ors on 28 April, 2017
Bench: V.K. Tahilramani
909. wp 55.17.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 55 OF 2017
Shri Dattatraya Chandrakant Kakade
Age 41 years, occupation -
Residing at Pokharapur, Taluka - Mohol
District - Solapur .. Petitioner/Detenu
Vs.
1. The District Magistrate, Solapur
2. The State of Maharashtra
(Through Addl. Chief Secretary
to Government of Maharashtra
Mantralaya, Home Department
Mantralaya, Mumbai )
3. The Superintendent
Yerwada Central Prison
Pune .. Respondents
Ms.Jayshree Tripathi i/b Mr.Udaynath Tripathi, for the Petitioner.
Ms.M.H. Mhatre, APP for State.
CORAM : SMT. V.K.TAHILRAMANI &
M.S.KARNIK, JJ.
28th APRIL, 2017
ORAL JUDGMENT (PER SMT.
V
.K.TAHILRAMANI )
:
1. Heard both sides.
909. wp 55.17.doc
2. The petitioner/detenu - Dattatray Chandrakant
Kakade has preferred this Petition questioning the preventive
detention order passed against him on 01/12/2016 by the
respondent No.1 i.e. District Magistrate, Solapur. The said
detention order has been passed in exercise of powers under
section 3 (1) of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers & Drug-Offenders,
Dangerous Persons, Video Pirates, Sand Smugglers and Persons
Engaged in Black-Marketing of Essential Commodities Act, 1981
(hereinafter referred to as 'M.P.D.A. Act'). The detention order
has been issued as detenue is a sand smuggler whose activities
are prejudicial to the maintenance of public order.
3. Though number of grounds have been raised in the
present Petition whereby detention order has been assailed,
however, learned Counsel appearing for the petitioner/detenu
has pressed only one ground before us i.e. ground 5(c). Briefly
stated ground 5(c) is that in the opening paragraph of the
grounds of detention, the detaining authority has stated that the
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detention order has been issued on the grounds as mentioned in
paragraphs 2 to 7 of the grounds of detention. However, in
paragraph 3 (1) of the grounds of detention, 8 registered cases
are stated from the year 2012 till the year 2016 and no details of
cases at serial Nos. 2 to 8 are mentioned in the grounds of
detention. Hence, right of detenu to make an effective
representation at the earliest was violated due to which the
detention order would be vitiated.
4. Learned Counsel appearing for the detenu invited
our attention to paragraph 1 of the grounds of detention served
upon the detenu wherein it is stated as under :
"I hereby communicate to you the grounds as mentioned in
paragraphs 2 to 7 on which detention order has been made by me
on this day against the detenu under sub section (1) of section 3 of
the said act."
5. Mr.Tripathi submitted that this shows that the order
of detention is based on paragraphs 2 to 7 of the grounds of
detention which includes paragraph 3 (1). Mr.Tripathi pointed
out in paragraph 3(1) of the grounds of detention, the detaining
authority has set out 8 first information reports, the sections
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under which the first information reports have been registered,
the names of police station where the first information reports
are registered and the status of the case. Mr.Tripathi submitted
that from paragraph 1 of the grounds of detention, it is clear
that paragraph 3(1) is one of the grounds of detention.
Therefore, subjective satisfaction of the detaining authority was
influenced by offences which have been set out in paragraph
3(1) of the grounds of detention. Mr.Tripathi submitted that the
detaining authority has not set out in the grounds of detention
the basic facts constituting offences set out in paragraph 3 (1) of
the grounds of detention which have been taken into
consideration by the detaining authority for passing the
impugned order of detention. Mr.Tripathi urged that it cannot
be denied that the order of detention is based on 8 first
information reports set out in paragraph 3 (1). However, no
relevant facts or even basic facts in relation to cases mentioned
at serial Nos. 2 to 8 have been set out in the grounds of
detention. He urged that as a result of failure to set out basic
facts and material in relation to first information reports
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mentioned at serial Nos. 2 to 8 in paragraph 3(1), the detenu
was prevented from making an effective representation in
accordance with clause 5 of Article 22 of the Constitution of
India.
6. Learned APP in reply placed reliance on the affidavit
of the detaining authority wherein ground 5(c) has been replied.
It is stated that the detenu has been supplied with the grounds
of detention and the compilation of the documents which
includes the first information reports and copies of charge-sheets
in the respective offences. However upon perusal of the
compilation of the documents, it is seen that entire charge-
sheets in the cases relating to first information reports at serial
Nos. 2 to 8 have not been furnished to the detenu. Many
material documents relating to these cases are not supplied to
the detenu.
7. We have given careful consideration to the
submissions of the learned Counsel for the petitioner and
learned APP for the State. We have perused the grounds of
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detention served on the petitioner/detenu. The first paragraph
of the grounds of detention clearly recites that grounds
mentioned in paragraphs 2 to 7 were being communicated to
the detenu on the basis of which the detention order has been
issued by the detaining authority under section 3 of the M.P.D.A.
Act. The grounds of detention have been set out in paragraphs
1 to 12. It will be necessary to make a reference to paragraphs 3
(1) which is as under :
Sr.No. Name of Police C.R.No. Section Case Status
Station
1 Mohol 596/2016 379, 34 IPC along with On
section 9 and 15 of the investigation
Environment Protection
Act.
2 Solapur Taluka 185/2015 143, 353, 323, 504, 506 of Court
IPC Pending
3 Mohol 208/2015 143, 147, 149, 327, 323, Court
504, 506 of IPC along with Pending
135 of Mumbai Police Act
4 Mohol 22/2015 379 of IPC Court
Pending
5 Mohol 88/2014 373, 34 of IPC along with Court
section 9 and 15 of Pending
Environment Protection
Act
6 Tembhurni 146/2013 379, 34 of IPC along with Court
section 21(4) of Mine and Pending
Mineral Act 1957.
7 Mandrup 126/2013 379, 34 of IPC along with Court
section 9 and 15 of Pending
Environment Protection
Act
909. wp 55.17.doc
8 Mohol 233/2012 379, 34 of IPC along with Court
section 9 and 15 of Pending
Environment Protection
Act
8. It is seen that paragraph 3(1) contains the list of 8
first information reports registered against the detenu, the
sections under which the offences are allegedly punishable, the
names of the police stations and the status of the cases have
been incorporated therein in tabular form. However, there is no
narration in the grounds of detention of the incidents at serial
No.2 to 8 which led to the registration of the said offences.
Even the gist of the facts set out in the first information reports
has not been incorporated therein. Only details relating to the
first C.R. i.e. C.R. No. 596 of 2016 of Mohol police station are
found in paragraph 3 (3) of the grounds of detention. No
details at all are given of the first information reports at serial
Nos. 2 to 8. At this stage, we make a reference to the well
known decision of the Apex Court in the case of Khudiram Das
Vs. The State of West Bengal and others reported in (1975) 2
Supreme Court Cases 81. In paragraph 6 of the said decision,
the Apex Court held thus :
"....If this be the true reason for providing that the grounds of which the
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order of detention is made should be communicated to the detenu, it is
obvious that the 'grounds' mean all the basic facts and materials which have
been taken into account by the detaining authority in making the order of
detention and on which, therefore, the order of detention is based"
9. After reference to its earlier decision, in the case of
Golam alias Golam Mallick V/s. State of West Bengal as well
as in the case of Ram Krishna Bhardwaj V/s. State of Delhi,
the Apex Court held thus :
" It is therefore, clear that nothing less than all the basic facts and
materials which influenced the detaining authority in making the order
of detention must be communicated to the detenu. That is the plain
requirement of the first safeguard in Article 22(5). The second
safeguard in Article 22(5) requires that the detenu shall be afforded the
earliest opportunity of making a representation against the order of
detention. No avoidable delay, no shortfall in the materials
communicated shall stand in the way of the detenu in making an early,
yet comprehensive and effective, representation in regard to all basic
facts and materials which may have influenced the detaining authority
in making the order of detention depriving him of his freedom. These
are the legal bulwarks enacted by the Constitution - makers against
arbitrary or improper exercise of the vast powers of preventive detention
which may be vested in the executive by a law of preventive detention
such as the Maintenance of Internal Security Act, 1971"
10. As noted earlier by us in the first paragraph itself
paragraph 3(1) is described as a ground of detention by the
detaining authority. As held by the Apex Court a 'ground' means
all the basic facts and material which has been taken into
account by the detaining authority while issuing the order of
detention and on which the order of detention is based. The
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ground is not merely a fact that particular offence has been
registered against the detenu but basic facts relating to the said
offence has to be stated in the grounds of detention.
11. In view of the clear recital in paragraph 1 of the
grounds of detention, the detaining authority cannot now deny
that paragraph 3(1) is a ground of detention. From the grounds
of detention it is obvious that the subjective satisfaction of the
detaining authority is based on what is incorporated in
paragraph 3(1).
12. The Apex Court in the case of Khudiram Das
(supra) has held that "grounds" means all the basic facts and
materials which have been taken into account by the detaining
authority in making an order of detention. Therefore, merely
stating the first information report numbers, penal sections of
statute and names of police stations and status of the cases is
not sufficient compliance with the constitutional safeguard of
communicating grounds of detention to the detenu. Going by
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paragraph 1 of the grounds of detention, it is clear that
detaining authority was influenced by the offences set out in
paragraph 3(1) of the grounds of detention which includes first
information reports mentioned at serial Nos. 2 to 8 of the said
para. However, no details of the first information reports at
serial Nos. 2 to 7 have been incorporated in the grounds of
detention. Thus, in the present case, there is clear violation of
the safeguard provided under Article 22(5) of the Constitution
of India of communicating grounds of detention to the detenu.
13. As basic facts and materials in relation to the said
offences which have influenced the subjective satisfaction of the
detaining authority have not been incorporated in the grounds
of detention served upon the detenu, other constitutional
requirement of affording earliest opportunity to the detenu of
making an effective representation against an order of detention
has also been violated.
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14. In the above circumstances, the impugned order of
detention is vitiated and deserves to be quashed and set aside.
Accordingly, it is quashed and set aside. Rule is made absolute
in the above terms.
(M.S.KARNIK, J.) (SMT. V.K.TAHILRAMANI, J.)
