John @ Ravi Ramesh Govar vs The District Magistrate Akola ...
2021 Latest Caselaw 14453 Bom

Judgment

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR

              CRIMINAL WRIT PETITION NO.275 OF 2021

John @ Ravi Ramesh Govar (In jail),
Age 30 years, r/o Vijaynagar,
Trafail Akot, district Akola.                     ..... Petitioner.

                                  :: V E R S U S ::

1. The District Magistrate, Akola,
District Akola.

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

3. The Superintendent, Akola
District Prison Akola, district Akola. ..... Respondents.
===================================
Ms Jayshree Tripathi, Counsel for the Petitioner.
Shri     S.S.Doifode,     Additional   Public     Prosecutor for
Respondents/State.
===================================

             CORAM              : V.M.DESHPANDE & AMIT B.BORKAR, JJ.

DATE : OCTOBER 05, 2021

ORAL JUDGMENT (Per : Amit B.Borkar, J.)

1. Heard learned counsel Ms Jayshree Tripathi for the

petitioner and learned Additional Public Prosecutor Shri

S.S.Doifode for respondents/State.

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2. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel for parties.

3. By this writ petition, the petitioner challenges order of

detention dated 11.12.2020 bearing No.Desk-2/HA/Home/WS-

798/2020.

4. Facts giving rise to the present writ petition are as

under:

The petitioner was served order of detention with

grounds dated 11.12.2020 annexing copy of 61 documents. The

petitioner, therefore, on 22.2.2021 sent a representation to the

State Government for revocation of the order of detention. The

said representation was rejected by order dated 28.4.2021. The

petitioner has, therefore, challenged the order of detention on

various grounds.

5. During course of hearing, learned counsel for the

petitioner pressed two grounds which are ground Nos.h and k,

which read as under:

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"(h) The petitioner says and submits that a representation dated 22.2.2021 of the Petitioner was sent to the State Government through Superintendent Akola District Prison Akola for expeditious consideration and communication. The Petitioner further submits that in the said representation there was a specific request made to supply vital documents of relied on CR NO.666/2020 i.e. statements of the informant and her husband along with other witnesses, Seizure Panchanama and Search Panchanama to enable the Petitioner to make effective representation. In spite of specific request made to the detaining authority so far the Petitioner has not been supplied with documents requested for. As such Petitioner's right to make effective representation guaranteed under Article 22(5) of the Constitution of India is violated. As held in a number of judgments of Apex Court and this Hon'ble Court that non supply of documents requested by the detenu, in spite of specific request made by the Petitioner, vitiates the detention order. The order of detention is illegal and bad in law liable to be quashed and set aside.

(k) The Petitioner says and submits that a representation dated 22.2.2021 was sent to the State Government through Superintend District Prison Akola for expeditious consideration and revocation of the order of detention. So far no communication has been received from the said authorities as regards to the consideration and revocation of the order of detention, thus there is a gross delay in consideration and communication of the result of the representation. The concerned authorities are called upon to explain the delay, if any, to the satisfaction of this Hon'ble Court by filing affidavit. As such for delay in consideration and communication of the representation of the Petitioner, the order of detention

.....4/-

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will be held to be illegal and bad in law since right to make representation guaranteed under Article 22(5) of the Constitution of India is violated. The order of detention is illegal and bad in law liable to be quashed and set aside."

6. This Court by order dated 23.3.2021 issued Notices to

respondents. Respondent No.1 has filed affidavit dated 4.9.2021.

and additional affidavit dated 6.9.2021. In affidavit dated 6.9.201,

respondent No.1 has given explanation to ground No.h and k,

which is as under:

"With reference to para 8(h), it is submitted that, detenue's representation dated 22.02.2021 regarding revocation of the order of detention and furnishing demanded documents was received in the Special Branch-3B Desk of Home Department on 08.03.2021 through the Superintendent, Akola District Prison, Akola vide letter dated 04.03.2021. After considering, the remarks of Detaining authority dated 26.04.2021 and all the materials and fact of the case, it is found that, all the relevant and vital documents had already been provided to detenue at the time of detention by Detaining authority. The Additional Chief Secretary (Home) considered the representation of the detenue and the remarks of the Detaining Authority and rejected the representation on 28.04.2021 by applying his mind. And the rejection of representation was communicated by speed post to the detenue vide letter dated 28-04-2021 through the registry section of Home Department.

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With reference to para 8(k), it is submitted that, representation of detenue dated 22.02.2021 was received in the Special Branch-3B Desk of Home Department on 08.03.2021 though the Superintendent, Akola District Prison, Akola vide letter dated 04.03.2021. Thereafter, remarks were called for from the Detaining Authority i.e. District Magistrate Akola on the same day i.e. 08.03.2021 by Special Branch-3B Desk. The remarks of the Detaining Authority were received on 26-04-2021 vide letter dated 26-04-2021 via e-mail. The concerned Section Officer submitted file containing remarks of Detaining Authority alongwith the representation of the detenue to the Additional Chief Secretary (Home) on 27.04.2021. The Additional Chief Secretary (Home) considered the representation of the detenue and the remarks of the Detaining authority and rejected the representation on 28.04.2021 by applying his mind. The rejection of representation was communicated by speed post to the detenu vide letter dated 28.04.2021 through the Registry section of Home Department. Thus, the representation of the detenue was considered by the the State Government as expeditiously as possible. Thus, there is no substance in the say of the petitioner in this para."

7. Learned counsel for the petitioner submitted that

there is gross and unexplained delay in consideration of

representation of the petitioner by the State of Maharashtra which

has caused prejudice to the petitioner and has taken away right of

effective representation under Article 22(5) of the Constitution of

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India. She placed reliance in cases of Rama Dhondu Borade vs.

V.K.Saraf, Commissioner of Police and ors, reported at

(1989)3SCC 173. She also submitted a specific request was made

by the petitioner to supply vital documents relied in CR

No.666/2020 which contained statements of informant and her

husband along with other witnesses, seizure panchanama and

search panchanama. It is submitted that in spite of request, said

documents were not supplied to the petitioner taking away right

under Article 22(5) of the Constitution of India.

8. Learned Additional Public Prosecutor for the State

supported the detention order and submitted that respondent No.1

by filing reply dated 6.9.2021 has sufficiently explained ground

Nos.h and k raised in the petition. It is submitted that all relevant

and vital documents have already been provided to the detenue at

the time of detention by the detaining authority. It is submitted

that the delay in consideration of the representation of the detenue

has been explained by the authority by stating that the

representation was received on 8.3.2021 and immediately remarks

were called from the detaining authority. The remarks of the

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detaining authority were received on 26.4.2021 and on 28.4.2021

itself the representation of the detenue was rejected and,

therefore, the delay in deciding the representation has been

sufficiently explained by the respondents.

9. We have carefully considered the detention order

passed by the detaining authority along with both replies filed by

respondents. Insofar as ground No.k is concerned, it is not

disputed that the representation filed by the detenue was received

by the Home Department on 8.3.2021. Though respondents have

explained in their affidavits that on the same day the

representation was sent for explanation to the detaining authority

and the detaining authority has submitted its reply on 26.4.2021.

In our opinion, reason mentioned in the reply for causing delay in

consideration of the representation by the detaining authority is far

from being sufficient . The question of delay in deciding the

representation of the detenue in preventive detention matter is no

longer re integra in view of various judgments of the Hon'ble Apex

Court and this Court. A coordinate bench of this Court in recent

judgment in W.P.No.2095/2021 (Shubham Anil Ghadge vs. The

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Commissioner of Police, Pune City and ors) after considering

various judgments of the Supreme Court held that the delay on the

part of authorities to offer explanation cannot be said to be

sufficient explanation. In the facts of the said case, there was delay

of 16 days in offering explanation. The coordinate bench of this

Court held that said delay affected personal liberty of the citizens.

The coordinate bench of this Court therefore of the opinion that

there is undue and explained delay.

10. In the facts of the present case also, we are satisfied

that the delay on the part of the detaining authority to submit its

remarks from 8.3.2021 till 26.4.2021 is not satisfactorily explained

by the respondents in deciding the representation of the petitioner.

11. So far as ground No.h is concerned, the explanation

given by the respondent in its reply is to the effect that all relevant

and necessary documents were supplied to the petitioner by the

detaining authority before passing of order of detention. The

ground raised by the petitioner is specific wherein it is stated that

statement of informant and her husband along with other

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witnesses, seizure panchnama relied in CR NO.666/2020 were not

supplied to the petitioner. There is no satisfactory reply filed by

the respondents to the said ground. The respondents have not

stated that documents which were requested by the petitioner

were supplied to the petitioner. It is also not case of the

respondents that documents which were requested by the

petitioner were extraneous to the decision taken by the detaining

authority. Therefore, we are satisfied that the order of detention

suffers from vice of non-supply of relevant documents.

12. Cumulative effect of non-supply of documents and

delay in deciding the representation of the petitioner has made the

order of detention unsustainable in the eye of law.

13. In this view of the matter, we pass following order:

ORDER

(1) The criminal writ petition is allowed.

(2) The impugned order dated 11.12.2020 bearing No.Desk-2/HA/

Home/WS-798/2020, which is confirmed by order dated

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21.1.2021 issued by respondent No.2, is hereby quashed and set

aside.

(3) The petitioner shall be released forthwith, if not required to be

detained in any other offence

JUDGE JUDGE

!! BRW !!

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