Sanjay S/O Ramuji Phatode vs The Commissioner Of Police And Ors
2021 Latest Caselaw 12101 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 2335 OF 2021

Sanjay s/o Ramuji Phatode
Age 47 years, R/o Ram Nagar,
Behind Pandhrabodin Hutment
P. Stn. Ambazari, Nagpur City
(At Present Yerwada Central Prison,
Pune.)                                                   ...PETITIONER

         Versus

1.       The Commissioner of Police
         Nagpur City.

2.       The State of Maharashtra
         Through Additional Chief
         Secretary to Government of
         Maharashtra, Mantralaya,
         Home Department, Mantralaya,
         Mumbai.

3.       The Superintendent
         Yerwada Central Prison,
         Pune.                                           ...RESPONDENTS
                                               ...
Ms. Jayshree Tripathi for Petitioner.
Mr. J.P. Yagnik, APP for State.
                                               ...

                                        CORAM : S. S. SHINDE &
                                                N. J. JAMADAR, JJ.

RESERVED ON : 5th AUGUST, 2021.

PRONOUNCED ON: 30th AUGUST, 2021.

Bhagyawant Punde





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JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and heard with the consent

of learned counsel appearing for the parties.

2. On 16.03.2021, order of detention under Section 3(2) of the

MPDA Act, was issued by Respondent No. 1- Commissioner of Police,

Nagpur City, Nagpur. On 22.06.2021, a representation of the petitioner was

sent to the State Government through the Superintendent Yerwada Central

Prision, Pune, for expeditious consideration and revocation of the order of

detention. On 08.04.2021, the representation of the petitioner was rejected.

The petitioner was interviewed by the advisory board at Mumbai through

virtual conference. Hence, this writ petition thereby challenging the legal and

constitutional validity of the detention order.

3. The Petitioner has incorporated grounds (a) to (e) in the petition,

however, learned counsel for the petitioner while arguing the petition

confined her arguments to ground (c), (d), (e), (f) and (g). Learned counsel

submits that though the detaining authority i.e. Respondent No. 1 has relied

upon C.R. No. 351 of 2020, it is to be noted that in the said crime the

petitioner was not even present on the spot of incident, it was his son who has

dealt with the complainant. Therefore, the said offence should have kept out

of consideration while passing the order of detention. It is further submitted

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that in three cases which have been relied upon by the detaining authority

while passing the detention order, in all those cases the petitioner was

produced before the Court and the Court has granted bail to him. It is

submitted that the alleged offences are under the Maharashtra Money-

Lending (regulation) Act, 2014, and in repsect of those offences, the law will

take its own course and there was no need to invoke the provisions of MPDA

Act. It is submitted that two in-camera statements of witnesses 'A' and 'B' are

found to have been recorded on 12.02.2021 and 13.02.2021 respectively. On

a close scrutiny of both the statements it was noticed that that there are at least

seven blanks in both the statements of witnesses 'A' and 'B'. The statements

therefore cannot be said as true and authentic for having several blanks.

Whereas the detaining authority in the grounds of detention while narrating

the statements of witnesses 'A' and 'B' has furnished the details which are not

disclosed in the material statements of witnesses and it is difficult to

understand, as to how and from where these material/information is

incorporated in the grounds of detention, when they are not furnished in the

material statement of witness 'A' and 'B'. Such a variance in the grounds of

detention when compared with the contents of in-camera statements, creates

confusion and its truthfulness cannot be believed. As a result, the petitioner is

deprived of making any effective representation, as such petitioner's right

guaranteed under Article 22(5) of the Constitution of India is violated.

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4. It is submitted that the representation of the petitioner dated

22.06.2021 was sent to the Superintendent of Yerwada Central Prison, Pune

for forwarding the same to the State Government for expeditious

consideration, revocation, but, so far, no communication has been received

from the State Government as regards to the consideration of said

representation of the petitioner. The State Government has caused

considerable delay in considering the representation of the petitioner and not

considered and decided the same expeditiously and diligently. The State

Government has not explained the delay occurred from the date of

representation till same was decided. It is further submitted that the detaining

authority has not complied with the requirement of law strictly inasmuch as

no report is sent promptly and expeditiously to the State Government

forthwith as required by Section 3(3) of MPDA Act.

The Hon'ble Apex Court while interpreting the very word

'forthwith' as immediately, without any loss of time and with sense of urgency.

This has been followed by this Court in a number of pronouncements. The

delay in sending the report has to be explained to the satisfaction of this Court.

In the present the order of detention came to be passed on 16.03.2021 which

was approved by the State Government, Home Department, Mantralaya,

Mumbai, on 23.03.2021 i.e. eight days from the date of passing the order of

detention. Therefore, there is delay in approval of the detention order as

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required under Section 3(3) of MPDA Act, 1981. As the approval of the

detention by the State Government is not done forthwith, as per requirement

of law. Therefore, the order of detention is illegal, bad in law and liable to be

quashed and set aside.

5. Pursuant to the notices issued to the respondents, the

Respondent No. 1 has filed affidavit in reply and the record is made available

for perusal of this Court. So far ground (g) raised in the petition that there was

delay in approval of detention order as required under Section 3(3) of the

MPDA Act, is concerned, in the reply filed by the said authority it is stated

that as required the report was sent to the Government of Maharashtra on

20.03.2021. The State Government was pleased to approve the order of

detention on 23.03.2021 and confirmed the said order of detention on

27.04.2021. Admittedly, from 16.03.2021 i.e. date of passing of detention

order, till 20.03.2021, were the working days for State Government and there

was no single holiday in between that period. It is clear from aforesaid reply

that the delay in sending the report to the State Government is not explained.

The Division Bench of this Court in the case of Dharani Raja Padyachi Vs.

The State of Maharashtra & Ors1, in para 6 and 8 held as under:-

"6. Perusal of provisions of subsection (3) of Section 3 of the said Act makes it clear that

1 2019 ALL MR (Cri) 3504

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upon making the order directing detention of the detenu, the specified officer is required to forthwith report that fact to the State Government together with the grounds on which the order has been made and such other particulars, as in the opinion of the Detaining Authority have a bearing on the matter. Thus, report is required to be sent forthwith to the State Government upon making an order directing detention of the detenue. Forwarding of such report is not required to be kept pending for execution of order of detention. In the case in hand, order of detention was made on 6th November 2018 and from affidavit of the Detaining Authority, it is clear that from 7th November 2018 were nonworking days being 2nd Saturday and Sunday. As such, the delay up to 11th November 2018 got explained from the affidavit of the Detaining Authority.

However, there was no reason with the Detaining Authority to not to sent the report in respect of making of order of detention to the State on 12th November 2018. However, it appears that, without any plausible reason, the report of making of order of detention was not sent to the State by the Detaining Authority on 12th November 2018 and 13th November 2018. Ultimately, it was sent to the State Government on 14th November 2018.

The reason for not sending the report on these two days is totally irrelevant to the cause. It was not at all necessary for the Detaining Authority to wait for execution of order of detention by getting custody of the petitioner from the court. The Detaining Authority ought not to have waited for sending report to the State till taking custody of the detenu and till lodging him in the Nashik Road Central Prision Nashik.

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8. It is thus, clear that, the report as envisaged by subsection (3) of Section 3 was not sent by the Detaining Authority to the State Government at the earliest and without loss of time. Sending of the report was delayed and the delay was avoidable. There appears to be laxity in report of the detention to the Government by the Detaining Authority on the pretext that the detention order was to be executed by getting custody of the detenue transferred to it from the concerned Judicial Magistrate."

6. The Hon'ble Supreme Court in the case of Hetchin Haokip Vs.

State of Maharashtra & Ors2, in para 15 observed that the expression

"forthwith" under Section 3(4), must be interpreted to mean within reasonable

time and without any undue delay. This would not mean that the detaining

authority has a period of twelve days to submit the report (with grounds) to

the State Government from the date of detention. The detaining authority

must furnish the report at the earliest possible. Any delay between the date of

detention and the date of submitting the report to the State Government,

must be due to unavoidable circumstances beyond the control of the authority

and not because of administrative laxity.

7. In the facts of the present case, admittedly, the report was not

forwarded to the State Government till 20.03.2021, though the detention

2 (2018) 9 SCC 562

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order was passed on 16.03.2021. Thereafter the State Government approved

the detention order on 23.03.2021. The delay of three days in sending the

report to the State Government remained unexplained and thereafter delay in

approving the order of detention by the State Government also remained

unexplained. There was delay in communicating the grounds of detnetion and

same was beyond five days, on the part of detaining authority, which according

to us is fatal to the case.

8. This Court (Coram:- S.S. Shinde & N.B. Suryawanshi, JJ.) in the

case of Mahesh Gopinath Pawar Vs. The Commissioner of Police Pimpri-

Chinchwad & Ors3, while considering the same ground of delay in sending

report to the State Government, in para 8 held as under:-

"8. The learned counsel for the Petitioner was justifed in placing reliance in the case of Dharani Padyachi (supra) wherein the Division Bench of this Court in similar facts held that delay of 2 days in forwarding report was fatal. It was held that "in terms of section 3(3) of the said Act, it is clear that upon making the order directing detention of the detenu, the specifed offcer is required to forthwith report that fact to the State Government together with the grounds on which the order has been made and such other particulars, as in the opinion of the detaining authority have a bearing on the matter". Thus the report is required to be sent forthwith to the State Government upon making the order

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directing the detention of the detenu. In that case delay was of 2 days in forwarding the report, which was held to be fatal though the same was sought to be explained by the detaining authority. In the present case, admittedly there is delay of 3 days in forwarding the report under section 3(3) of the said Act which according to us is not explained and the same vitiates the impugned detention order."

9. Another contention raised by the learned counsel for the

petitioner that two in-camera statements of witness A and B, which were

recorded on 12.02.2021 and 13.02.2021 receptively, of which copies were

served to the petitioner, there are at least seven blanks in both the statements,

whereas the detaining authority in the grounds of detention while narrating

the statement has furnished the details, which were not disclosed in the

statement of witness A and B. According to the learned counsel for the

petitioner, such variance in the grounds of detention when compared with the

contents of statements of witness A and B creates confusion and the

truthfulness of said statements cannot be believed and as a result, the

petitioner was deprived of making an effective representation. As such

petitioner's right guaranteed under article 22(5) of the Constitution of India is

violated.

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10. In the reply filed by the respondent no. 1 it is stated that though

the petitioner has committed several offences, the witnesses were not willing

to come forward to give complaint against the petitioner due to the terror

created by him and his associates. It was only when the assurances were given

to the witnesses, that their names and identifying particulars would not be

disclosed, the two witnesses came forward to give their statements and

thereafter, statements were recorded in-camera on 12.02.2021 and 13.02.2021

respectively. Hence, their names, address, occupation are not disclosed to

detenue along with grounds of detention.

We can understand that name, address and occupation of the

witnesses are not disclosed, however, least expected is that the detaining

authority should disclose the date and place of incident, so as to enable the

detenue to make an effective representation or reply to the statements of those

witnesses.

11. So far ground (f) i.e. delay in deciding the representation of the

petitioner dated 22nd June, 2021 is concerned, the respondent in the reply

stated that representation of the petitioner dated 22.06.2021 was sent to the

Superintendent, Yerwada Central Prison, Pune and to the State Government

which was received by the State Government on 25.06.2021 and the State

Government has called for the parawise comments from the office of detaining

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authority. The same was received by us on 28.06.2021 and on 29.06.2021 the

detaining authority has sent the representation to the Deputy Commissioner

of Police, Nagpur City. On 30.06.2021 the Deputy Commissioner of Police,

Zone-II has sent to Police Inspector, Police Station Ambazari for preparing the

parawise comments. The Police Inspector, Police Station, Ambazari received

the same on 01.07.2021. In the said period their were two Government

holidays i.e. on 03.07.2021 and 04.07.2021 being Saturday and Sunday. On

05.07.2021, the Police Inspector, Police Station Ambazari submitted parawise

comments to the Deputy Commissioner of Police, Zone-II, Nagpur. On

06.07.2021, the Deputy Commissioner of Police, Zone-II, Nagpur submitted

parawise comments to the detaining authority, which was received on

07.07.2021 and the same was finalized on 08.07.2021 by the Respondent No.

1. Thereafter, the same was forwarded to the State Government for the

consideration of the representation.

12. On careful perusal of reply of Respondent No. 1, it is clear that,

the explanation about how the said communication the representation of the

petitioner dated 22.06.2021 was sent to the State Government, and further

when the said representation reached to the State Government and what

happened on 26.06.2021 and 27.06.2021 has not been explained.

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13. In the light of discussion in foregoing paragraphs, we are of the

considered opinion that the writ petition deserves to be allowed. Hence, the

following order.

ORDER

1. The impugned order of detention bearing No. D.O. No. DET/MPDA/Zone-II/PCB/14/2021 dated 16.03.2021 issued under Section 3 of MPDA, Act, 1981, by Respondent No. 1, is quashed and set aside.

2. The Petitioner is to be released forthwith, unless required in any other offence or proceedings.

3. Rule is made absolute to above terms.

4. The writ petition stands disposed of.

5. Parties to act upon an authenticated copy of this order.

      ( N. J. JAMADAR, J.)                                     (S. S. SHINDE, J.)




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