Bombay High Court
Pandharinath Waje vs The State Of Maharashtra And Ors on 28 January, 2021
Bench: Manish Pitale, S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST.) NO.2397 OF 2020
AND
INTERIM APPLICATION (ST.) NO.3848 OF 2020
ALONG WITH
INTERIM APPLICATION (ST.) NO.3504 OF 2020
IN
CRIMINAL WRIT PETITION (ST.) NO.2397 OF 2020
Pandharinath Waje, ]
Residing at Flat No.4, Rushabh Heights ]
Society, Sadguru Jai Bhavani Road, Nashik. ] ... Petitioner
(Father of Detenu)
Versus
1. The State of Maharashtra ]
(Through Secretary to the ]
Government of Maharashtra), Home ]
Department (Special), Mantralaya, ]
Mumbai - 400 032. ]
2. The Hon'ble Advisory Board, ]
Through Chairman Advisory Board, ]
Home Department (Special-10), New ]
Administrative Building, Mantralaya, ]
Mumbai - 400 32. ]
3. The Commissioner of Police, ]
Nashik City, Opp. K.T.H.M. College, ]
Gangapur Road, Nashik City. ]
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4. The Superintendent of Nashik Road ]
Central Prison, Nashik. ] .... Respondents
...
Ms. Aisha Z Ansari with Ms. Nasrean Ayubi for the petitioner.
Ms. M.H. Mhatre, A.P.P. for the respondent-State.
...
CORAM : S.S. SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 19TH JANUARY, 2021.
PRONOUNCED ON : 28TH JANUARY, 2021.
JUDGMENT:- [Per: Manish Pitale, J.]
1. In this writ petition Rule was granted on 13.10.2020. Heard finally
with the consent of learned counsel for the rival parties.
2. By this writ petition, the petitioner, who is the father of Aniket
Pandharinath Waje, ("the detenu"), has challenged order of detention
dated 29.06.2020 passed by Respondent No.3. It is contended that the
detention order suffers from various defects and that therefore, it is liable
to be set-aside.
3. On 29.06.2020, Respondent No.3 issued the detention order and
served the grounds of detention on the detenu. It was stated in the
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grounds of detention that the said order of detention was issued under
Section 3(2) 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 ("the MPDA Act"), as the detenu was
likely to indulge in activities prejudicial to public order. A list of six cases
registered against the detenu for cognizable offences was stated in the
said grounds of detention, apart from earlier chapter proceedings
initiated against him. Respondent No.3 also referred to an externment
proceeding as also an earlier detention proceeding initiated against the
detenu. Respondent No.3 recorded that since the detenu had unleashed
a reign of terror, in-camera statements had to be recorded of three
witnesses, who confirmed the fact that the detenu was indulging in
activities like extortion and threatening persons. On this basis, the
Respondent No.3 arrived at subjective satisfaction to issue the said order
of detention.
4. On 22.07.2020, the detenu submitted his representation addressed
to the State Government and the Advisory Board. The said
representation was rejected by the State Government on 18.08.2020 and
such rejection was communicated to the detenu on 20.08.2020. The
petitioner then filed the present writ petition in which Rule was granted.
Thereafter, this court permitted the petitioner to amend the writ petition
to add an additional ground of challenge. The respondents filed affidavits
and additional affidavits, in order to respond to the grounds of challenge
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raised in the writ petition.
5. Ms. Aisha Ansari, learned counsel appearing for the petitioner
challenged the order of detention primarily on two grounds. Firstly, she
pressed into service the ground raised in the writ petition by way of
amendment. Learned counsel submitted that the material on record
clearly indicated that the representation dated 22.07.2020 submitted by
the detenu was admittedly received through email on 23.07.2020. It was
emphasized that despite receipt of the representation on 23.07.2020, it
was rejected after considerable delay, on 18.08.2020 and such rejection
was also communicated in a delayed manner on 20.08.020. It was
submitted that the delay in consideration of representation of the detenu
was fatal and that, on this ground itself, the detention order deserved to
be set-aside. Learned counsel for the petitioner placed reliance on
judgements of the Hon'ble Supreme Court in the case of Harish Pahwa
v. State of Uttar Pradesh1 and Rashid Kapadia v. Medha Gadgil and
Ors.2.
6. Secondly, learned counsel appearing for the petitioner submitted
that the detenu had specifically requested for representation through an
advocate at the time of consideration of his representation, yet, he was
not granted the said facility. Learned counsel for the petitioner
submitted that it is settled law that when the detaining authority or the
Government takes aid of a legal practitioner or when they are
1 (1981) 2 SCC 710
2 (2012) 11 SCC 745
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represented by their officers, a detenu is certainly entitled to be
represented by an advocate. Learned counsel for the petitioner
submitted that, in the present case, the aforesaid valuable right of the
detenu was violated and, therefore, the writ petition deserved to be
allowed. Learned counsel for the petitioner relied upon the judgements
of the Hon'ble Supreme Court in the case of A.K. Roy v. Union of
India3 and Choith Nanikram Harchandani v. State of Maharashtra and
Ors.4. Learned counsel for the petitioner vehemently submitted that the
impugned order deserved to be set-aside.
7. On the other hand, Ms M.H. Mhatre, learned A.P.P. appearing on
behalf of the respondents submitted that there was no substance in the
aforesaid two grounds raised on behalf of the petitioner because the facts
of the present case, supported by the material on record and the affidavits
filed by the respondents demonstrated that all necessary requirements of
law were satisfied in the present case and that the detenu did not deserve
any indulgence from this court. Learned A.P.P. relied upon affidavit filed
on behalf of respondent No.1 through Joint Secretary, to contend that
the representation of the detenu dated 22.07.2020 was received on
11.08.2020 and, thereafter, proceedings were undertaken expeditiously,
leading to rejection of the representation on 18.08.2020. It was
submitted that merely because there was postal delay in receiving the
representation, it could not be said that the right of the detenu regarding
expeditious consideration of his representation was violated in any
3 1982 Cri. L.J. 340
4 (2015) 17 SCC 688
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manner in the facts of the present case. Learned A.P.P. further submitted
that the detenu had submitted six copies of the representation addressed
to the State Government, Advisory Board and others. Therefore, he
could not be permitted to take advantage of such a situation. Learned
A.P.P. relied upon the judgement of this court in the case of Shadab
Siddiq Khan Vs. Shri A.N. Roy, Commissioner of Police 5, to contend
that the detenu and his advocate was expected to make representation
that was clear and in unambiguous language and to address the same
specifically to the concerned authority.
8. As regards the second ground of challenge pertaining to the detenu
being deprived of his right to make representation through an advocate,
learned A.P.P. relied upon affidavits filed by the Secretary of the
Advisory Board and the Superintendent of the Nashik Road Central
Prison, to contend that no demand was ever made on behalf of the
detenu for representation through an advocate. It was submitted that link
of the Advisory Board meeting was forwarded to the detenu and he did
attend the meeting through video-conferencing. In the affidavit of the
Secretary to the Advisory board, it was stated that the advocate of the
detenu was having the mobile number of the said official, but the
advocate never asked for link of the said meeting of the Advisory Board.
On this basis, it was submitted that there was no substance in the second
ground of challenge also. It was submitted that the order of detention
had been issued by the detaining authority after considering the material
5 2006 All MR (Cri.) 806
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available on record, which indicated that the detenue was a threat to
public order and that his detention was necessary to prevent him from
indulging in any prejudicial activities. On this basis, it was submitted that
the writ petition deserved to be dismissed.
9. Having heard learned counsel for the rival parties, it is necessary to
consider the material on record to examine as to whether the aforesaid
two grounds of challenge raised on behalf of the petitioner make out a
case in favour of the detenu, so as to interfere with the order of
detention. It is a settled position of law that the power of the detaining
authority in issuing an order of detention is to be exercised when certain
special circumstances exist and, at each stage of exercise of such power
and consideration of representation of the detenu, stringent requirements
need to be complied with, for the reason that the power of detaining a
person without trial is materially different from initiation of criminal
proceedings under the ordinary law. The right of a detenu under Article
22(5) of the Constitution of India has been held to be sacrosanct,
because liberty of person is sought to be curtailed without trial. The
courts have been extremely zealous in protecting the aforesaid right of
the detenu, in all its facets.
10. It has been consistently held by the Hon'ble Supreme Court that
unexplained delay in disposal of representation of a detenu leads to
quashing of the detention order on that ground itself. It has been held
that if delay in consideration of representation is explained in a
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reasonable and satisfactory manner, the order of detention can be
sustained. But, any unreasonable and unexplained delay proves fatal to
the detention order. In the aforesaid judgements of the Hon'ble
Supreme Court, in the case of Harish Pahwa (supra) and Rashid Kapadia
(supra), on which reliance is placed by the learned counsel for the
petitioner, it has been emphasized that the detenu has a constitutional
right under Article 22(5) of the Constitution to make a representation
against the detention order and to have it considered by the concerned
authority, as expeditiously as possible, and that any unreasonable delay
has to be held as fatal to the order of detention.
11. The material on record in the present case needs to be specifically
considered in order to examine the specific ground regarding delay in
consideration of representation of the detenu raised in the present
petition. According to the petitioner, the detenu preferred a
representation against the order of detention, on 22.07.2020, both by
way of sending hard copies and by sending an e-mail. On this basis, it
was contended that when the representation was indeed received by the
concerned authority by e-mail on 23.07.2020, rejection of the same on
18.08.2020, demonstrated that there had been unreasonable and
unexplained delay in consideration of the representation. In this regard,
it is necessary to examine the affidavits filed on behalf of the respondents
on the aspect of receipt of the representation and its rejection. Although
an attempt was made on behalf of the respondents to contend that the
representation of the detenu was received only on 11.08.2020 and that
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merely because there was postal delay, it could not be said that there was
unreasonable delay in consideration of the representation, but, a perusal
of the affidavit dated 28.10.2020 filed by the Secretary of the Advisory
Board would show that in paragraph 4, it is specifically admitted that the
representation of the detenu was received through e-mail on 23.07.2020,
while the hard copy of the representation was received through post on
11.08.2020. Furthermore, in the affidavit filed by the Superintendent of
the Nashik Road Central Prison, it was conceded that the representation
of the detenu was received on 22.07.2020 in the jail and then it was
forwarded for further processing.
12. The said material on record clearly shows that the representation
was received by e-mail on 23.07.2020 itself, and that, it could have been
immediately taken up for processing by the concerned authorities. Yet,
no steps were taken with expedition in the matter and the representation
was considered and ultimately stood rejected on 18.08.2020. The facts
on record clearly demonstrate that the petitioner is justified in
contending that there was unreasonable and unexplained delay in
consideration of the representation of the detenu and that therefore, as
per the aforesaid position of law, the order of detention deserved to be
set-aside. Learned A.P.P. was not able to explain as to why the
representation of the detenu received on 23.07.2020 itself by e-mail, was
not considered expeditiously for disposal. Thus, the aforesaid facts of the
present case show that the applicable law is certainly in favour of the
detenu, thereby indicating that the writ petition deserves to be allowed
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on this ground itself.
13. As regards the second ground of challenge, the material on record
shows that the detenu had specifically made a request for online link and
he had also specifically given the contact numbers of his advocate for
forwarding such a link. It is also on record that by a communication
dated 03.08.2020, the detenu had specifically requested that his
advocate should be allowed to represent him before the concerned
authority. The material, on which the respondents have placed reliance in
this regard, does not show that such an opportunity for representation
through an advocate was granted to him, despite specific request made
on his behalf. The affidavit filed on behalf of the respondents stating that
the advocate of the detenu had the mobile number of the Secretary of
the Advisory Board and that therefore, it could not be said that the
advocate did not have opportunity to represent the detenu, cannot be
accepted as a reasonable explanation for denial of opportunity to the
detenu to be represented through his advocate. When a specific request
was indeed made by the detenu for representation through his advocate,
such an opportunity ought to have been granted to him.
14. In this regard, learned counsel for the petitioner is justified in
relying upon the judgements of the Hon'ble Supreme Court in A.K. Roy
(supra) and Choith Nanikram Harchandani (supra), wherein it is
categorically laid down that when the detaining authority and others are
represented by their officers, the detenu ought to be granted an
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opportunity to be represented by an advocate. In the present case, it is
found on facts that the detenu had made a specific request for being
represented through an advocate and yet such opportunity was denied to
him. Therefore, on this ground also, the detention order and the entire
proceedings stand vitiated, indicating that the present writ petition
deserves to be allowed.
15. It does not need to be emphasized that the aforesaid rights of a
detenu are of immense significance for the reason that the detenu is
sought to be detained and his freedom is sought to be curtailed without
trial, by exercise of extra-ordinary power by the detaining authority.
Therefore, it is extremely necessary that the detaining authority and all
concerned authorities adhere to the strict requirements of law in order to
ensure that the freedom of the detenu is curtailed only in accordance
with law. In this regard, learned A.P.P. is not justified in contending that
there was enough material on record for the detaining authority to issue
the order of detention as the detenu had number of offences registered
against him and that there were three in-camera statements indicating
that if the freedom of the detenu was not curtailed, he would indulge in
activities prejudicial to public order.
16. It is worth mentioning that in the grounds of detention itself, the
detaining authority has referred to an earlier order of detention issued
against the detenu, which stood set-aside on "technical grounds". It
cannot be said that when the very right of freedom of the detenu is
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sought to be curtailed, non-adherence to strict procedure and consequent
setting aside of the order of detention can be said to be only on "technical
grounds". The detaining authority and all concerned in such matters
ought to realize that each and every procedural requirement in matters of
detention is substantial, as repeatedly laid down by the judgements of the
Hon'ble Supreme Court and this court, thereby indicating that failure to
adhere to such strict procedural requirements goes to the very root of the
matter, substantially affecting the order of detention.
17. In view of the above, we are of the opinion that the present writ
petition deserves to be allowed on the aforesaid two grounds raised on
behalf of the petitioner. Accordingly, the writ petition is allowed and the
impugned detention order is set aside. The respondents are directed to
release the detenu - Aniket Pandharinath Waje forthwith, who was
detained in connection with the impugned detention order dated
29.06.2020, unless he is required in connection with any other case.
18. Rule is made absolute in above terms.
19. In view of the disposal of the writ petition, all connected interim
applications stand disposed of.
(MANISH PITALE, J.) (S. S. SHINDE, J.)
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