Shubham Anil Ghadge vs The Commissiner Of Police And Anr
2021 Latest Caselaw 13610 Bom

                                                   CRIWP2095-2021.DOC

                                                                       Santosh


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION


                     WRIT PETITION NO. 2095 OF 2021

   Shubham Anil Ghadge
   Age - 21 years, R/o Behind AIIMS
   Hospital, Ganpati Mandir, Bhagat
   Chaal, Audh Gaon, Pune.                                  ...Petitioner
                     Versus
1. The Commissioner of Police, Pune City
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, for the Petitioner.
Ms. M. H. Mhatre, APP for the State/Respondent.

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

RESERVED ON: 26th AUGUST, 2021.

PRONOUNCED ON: 22nd SEPTEMBER, 2021.

JUDGMENT:- [PER : N. J. JAMADAR, J.]

1. Rule. Rule made returnable forthwith, and with the

consent of the Counsels for the parties, heard finally.

2. The petitioner, who has been detained by the order dated

25th February, 2021, passed by the Commissioner of Police,

Pune City - Respondent no.2, under the provisions of Section

3(2) of the Maharashtra Prevention of Dangerous Activities of

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Slumlords, Bootleggers, Drug Offenders and Dangerous

Persons, Video Pirates, Sand Smugglers and Persons engaged in

Black-marketing of Essential Commodities Act, 1981 ("the

MPDA Act, 1981"), takes exception to the said detention order.

3. Shorn of unnecessary details, the background facts

necessary for the determination of this petition can be stated as

under:

(a) A proposal was mooted by the Chatushrungi Police

Station, Pune City, to initiate a proceeding for preventive

detention against the petitioner as the petitioner and his

associates were indulging in criminal activities to foster terror in

society. It was alleged that the petitioner had become a

perpetual danger to the lives and properties of the people

residing within the limits of Chatushrungi Police Station. The

petitioner and his associates committed offences of attempt to

murder, grievous hurt, extortion and criminal intimidation by

using deadly weapons. On account of reign of terror created by

the petitioner, the victim and the witnesses were not coming

forward to make complaint against the petitioner due to fear of

reprisal.

(b) The detaining authority noted that two offences

affecting human body were registered against the petitioner

being CR No.502/2019 and CR No.1162/2021 at Chatushrungi

CRIWP2095-2021.DOC

Police Station. Preventive action initiated against the petitioner

brought to bear no deterrent effect upon the petitioner. On 20 th

October, 2021, the petitioner was arraigned in CR No.1298/2020

for the offences punishable under Sections 307, 143, 147, 148

and 149 of the Indian Penal Code, 1860 ("the Penal Code") and

Section 25 read with Section 3 of the Arms Act, 1959 and

Section 135 read with Section 37(1) of the Maharashtra Police

Act, 1951. The detaining authority also considered the statement

of two confidential witnesses, 'A' and 'B'.

(c) On the strength of the predicate offence, i.e. CR

No.1298/2020 and the statements of the witnesses recorded in-

camera the detaining authority recorded a subjective

satisfaction that the petitioner was a dangerous person within

the meaning of Section 2(b-1) of the MPDA Act, 1981, and in

order to prevent the petitioner from acting in any manner

prejudicial to the maintenance of public order it was necessary

to detain the petitioner by invoking the provisions contained in

Section 3(2) of the MPDA Act, 1981. Hence, respondent no.2

passed the impugned detention order dated 25th February, 2021.

The order was approved by the State Government under Sub-

section (3) of Section 3 of the MPDA Act, 1981, on 26 th February,

2021. Eventually, after considering the representation of the

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Advisory Board, the detention order was confirmed on 16 th April,

2021.

4. The petitioner has assailed the legality and validity of the

detention order by raising multi-fold grounds in the petition. We

have heard Ms. Tripathi, the learned Counsel for the petitioner

and Ms. Mhatre, the learned APP for the State, at length. With

the assistance of the learned Counsels for the parties, we have

also perused the material on record including the original

record before the detaining authority, tendered for the perusal

by the learned APP.

5. Though multi-fold grounds have been taken in the

petition, during the course of submissions, Ms. Tripathi

restricted the challenge to the following grounds:

(i) Delay in consideration of and decision on the representation of the petitioner against order of detention by the State Government.

(ii) Supply of illegible copies of judicial order to the petitioner resulting in prejudice to the petitioner in making an effective representation against the detention order.

(iii) Variance in the English and vernacular version of the injury certificate in the relied upon crime, which mislead the petitioner.

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6. We have carefully considered the aforesaid grounds of

challenge and the endeavour made by the respondents to meet

those grounds in their Affidavits-in-reply. In our view, the

petition deserves to be allowed on the ground of delay in

consideration of and decision on the representation of the

petitioner against the detention order.

7. On the aspect of delay, the facts are rather

incontrovertible. The petitioner claimed that he had sent the

representation to the State Government through the

Superintendent, Yerwada Central Prison, Pune, on 19th April,

2021. Indisputably, the representation came to be rejected by

the Additional Chief Secretary (Home) on 18 th May, 2021. In the

affidavit filed on behalf of the State Government - respondent

no.2, the ground of delay was sought to be met by asserting as

under:

"2. With reference to Para 06(g)(h) of Writ Petition, it is submitted that the representation dated 19.04.2021 (bearing signature of detenu dated 22.04.2021) was received in the Special Branch-3B Desk of Home Department on 28.04.2021 through the Superintendent, Yerwada Central Prison, Pune, vide his office letter dated 22.04.2021. Thereafter, remarks were called for from the Detaining Authority i.e. Commissioner of Police, Pune City on the same day i.e. 28.04.2021 by Special Branch-3B Desk. The remarks of the Detaining Authority were received on 14.05.2021 vide letter dated 13.05.2021. The concerned Assistant Section Officer submitted the file containing remarks of Detaining Authority alongwith the representation of the detenu to the Section officer on 14.05.2021. As there were holidays on 15.05.2021 (Saturday) and 16.05.2021 (Sunday), the concerned Section Officer submitted the file to the Deputy Secretary on 17.05.2021.

CRIWP2095-2021.DOC The Deputy Secretary endorsed it on 18.05.2021 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 rejected the representation on 18.05.2021 by applying his mind. The rejection of representation was communicated by speed post to the detenu vide letter dated 18.05.2021 through the Registry Section of Home Department. Thus, the representation of the detenu was considered by the State Government as expeditiously as possible."

8. From a bare perusal of the aforesaid contentions on behalf

of respondent no.2, it becomes evident that the representation

of the detenu dated 19th April, 2021 was received in the Special

Branch-3B Desk in the Home Department of the State

Government, on 28th April, 2021, vide letter of the

Superintendent, Yerwada Central Prison, Pune, dated 22 nd April,

2021. Remarks were called from the detaining authority on the

same day i.e. 28th April, 2021. However, the remarks of the

detaining authority were received on 14 th May, 2021 vide letter

dated 13th May, 2021. The competent authority is stated to have

considered and rejected the representation on 18 th May, 2021 as

15th and 16th May, 2021 happened to be holidays.

9. In the backdrop of the aforesaid uncontroverted facts, Ms.

Tripahti strenuously urged that the delay in processing the

representation of the petitioner is writ large. Amplifying the

submission Ms. Tripathi would urge that the constitutional

guarantee of expeditious consideration of the representation of

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the detenu against the order of detention was frustrated by

inordinate and unexplained delay in processing the

representation of the petitioner. Emphasis was laid on the fact

that there was a delay of almost 16 days on the part of the

detaining authority in submitting remarks, called for by the

State Government. According to Ms. Tripathi, what exacerbates

the situation is a complete absence of explanation on the part of

the detaining authority for the said delay. Our attention was

invited to the Affidavit-in-reply filed on behalf of the detaining

authority wherein with regard to the ground 6(h), pertaining to

the challenge based on delay, respondent no.1 simply asserted

that since the said point pertains to the State Government, the

Affidavit of the State Government may be perused. Thus, in the

absence of explanation, the delay renders the detention

unsustainable, urged Ms. Tripathi.

10. In opposition to this, Ms. Mhatre, the learned APP

attempted to salvage the position by relying upon the endeavour

made by the State Government to explain the delay in

paragraph 2 of the Affidavit-in-reply, extracted above. It was

urged that in the circumstances of the case, the delay cannot be

construed to be inordinate and unreasonable. The delay, thus,

does not impair the order of detention, submitted Ms. Mhatre.

CRIWP2095-2021.DOC

11. It is trite that the detenu has a fundamental right to make

and have the representation against the order of detention

considered by the competent authority. This right flows from

the constitutional guarantee contained in Article 22(5) and the

statutory provision in the particular enactment under which the

detenu is detained.

12. Article 22(5) of the Constitution of India provides as under :

"22(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

13. Sub-section (1) of section 8 of the MPDA Act, 1981,

provides as under :

"8(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government."

14. The fundamental right of the detenu to have his

representation against the order of preventive detention

considered by the Detaining Authority and Appropriate

Government is supplemented by the statutory mandate that the

Detaining Authority shall offer an earliest opportunity of making

a representation against the detention order to the appropriate

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government. These constitutional and statutory provisions

incorporate a corresponding duty on the authorities to whom

the representation is made, to dispose of the representation at

the earliest. Lest, the constitutional guaranty and statutory

protection would be rendered meaningless and illusory. If the

authorities fail to discharge the statutory obligation to provide

the earliest opportunity of making a representation and have it

considered, the provisions would be robbed of the meaning and

content.

15. A useful reference in this context can be made to the

Constitution Bench judgment in the case of Jaynarayan Sukul

Vs. State of West Bengal 1, wherein the principles were culled

out in the following words :

"18. It is established beyond any measure of doubt-that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any, delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.

19. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to,have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case

1(1970) 1 SCC 219.

CRIWP2095-2021.DOC whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat, J. who spoke for this Court in the case of Khairul Haque(1) "it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning. Broadly stated, four principles are to be followed in regard to representation of detenu. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It in true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu."

(emphasis supplied)

16. A profitable reference can also made to the judgment of

the Supreme Court in the case of Rama Dhondu Borade vs. V.

K. Saraf, Commissioner of Police and another2 on which reliance

was placed on behalf of the petitioner. In the said case after

adverting to the previous pronouncements, the Supreme Court

culled out the propositions as under:

"19. The propositions deducible from the various reported

2(1989) 3 SCC 173.

CRIWP2095-2021.DOC decisions of this Court can be stated thus:

The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty - the highly cherished right - which is enshrined in Article 21 of the Constitution.

20. True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention."

17. The aforesaid pronouncement was followed by the

Supreme Court in the case of Mahesh Kumar Chauhan alias

Banti vs. Union of India and others, 3 wherein in the backdrop of

the facts of the said case, which resemble with the facts of the

case at hand, the following observations were made:

"20. Reverting to the facts of the present case as submitted by the learned counsel, except merely mentioning that the representation was forwarded to the concerned sponsoring authority on August 25, 1989 and the comments from the

3(1990) 3 Supreme Court Cases 148.

CRIWP2095-2021.DOC sponsoring authority was received by the Department on September 11, 1989, there is absolutely no explanation as to why such a delay had occurred. Therefore, in the light of the proposition laid down in Rama Dhondu Borade's case (albeit), we have no other option except to allow this appeal on the ground that this undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 22(5) of the Constitution of India rendering the impugned order invalid."

18. On the touchstone of the aforesaid exposition of legal

position, reverting to the facts of the case, the authorities have

not made any effort to offer an explanation for the time

consumed by the detaining authority in forwarding the remarks

to the State Government, from 28th April, 2021 to 14th May,

2021. There is no explanation much less a satisfactory one. The

delay of about 16 days, for which there is not a semblance of

explanation, when the cherished personal liberty of a citizen is

infringed, can only be said to be unreasonable and

unsustainable. We find substance in the submissions of Ms.

Tripathi that it was for respondent no.1 to offer a plausible

explanation. However, respondent no.1 chose to simply affirm

that it is for the State Government to respond to the challenge

based on delay in consideration of the representation of the

detenu.

19. The conspectus of aforesaid consideration is that there

was an undue and unexplained delay in processing and

deciding the representation of the petitioner in clear violation of

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the constitutional imperative enshrined in Article 22(5) of the

Constitution of India. Resultantly, the order of detention is

rendered invalidate and unsustainable.

20. For the foregoing reasons, we are persuaded to quash and

set aside the impugned detention order and allow the petition.

21. Hence, the following order

:ORDER:

        (i)     The petition stands allowed.

        (ii)    The      impugned   order   of   detention         dated       25th

February, 2021, passed by the Commissioner of

Police, Pune City, stands quashed and set aside.

(iii) The petitioner - detenu Mr. Shubham Anil Ghadge,

be set at liberty forthwith, if not required to be

detained in any other case.

Rule made absolute in aforesaid terms.

        [N. J. JAMADAR, J.]                   [S. S. SHINDE, J.]