Bombay High Court
Shabana Iqbal Shaikh vs The Commissioner Of Police Pune ... on 28 July, 2022
Bench: Nitin Jamdar, N. R. Borkar
9-cr-wp-4802-21-j..doc
Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
DINESH
DINESH SADANAND
SADANAND SHERLA
WRIT PETITION NO. 4802 OF 2021
SHERLA Date:
2022.07.30
17:48:36
+0500
Mrs. Shabana Iqbal Shaikh
(Mother of the detenu) ... Petitioner
V/s.
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 alongwith Mr U.N. Tripathi for the Petitioner.
Ms S.D. Shinde, APP for the Respondent/State.
----------------
CORAM : NITIN JAMDAR &
N.R. BORKAR, JJ.
DATE : 28 JULY 2022.
ORAL JUDGMENT (PER NITIN JAMDAR, J.).
. By this writ petition, the Petitioner- mother of detenu Arbaz
alias Baban Iqbal Shaikh has filed this petition challenging the order
of detention dated 28 September 2021 issued by the Respondent
No.1- Commissioner of Police, Pune city. The order of detention is
issued under section 3(2) of the Maharashtra Prevention of Danger
Activities of Slumlords, Bootleggers (Drug Offenders, Dangerous
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Persons and Video Pirates)Act, 1981 (for short, "MPDA Act"). Since
the detenu was detained pursuant to the detention order, the
Petitioner is praying that the detenu be set forth at liberty.
2. Along with a copy of the order of detention dated 28
September 2021, a copy of the committal order dated 28 September
2021 and grounds of detention were supplied to the Petitioner. The
grounds of detention refer to and rely upon the offences committed
by the detenu from the year 2017 to 2020 under the Indian Penal
Code and Arms Act. Reference was made to three preventive actions
taken against the detenu where the detenu was externed twice, i.e.,
in the year 2017 and in the year 2021. After referring to the history,
the detaining authority relied on two offences registered against the
detenu on 12 April 2021 and 29 August 2021. The detaining
authority also relied upon the two In-Camera statements of
witnesses "A" and "B". Considering this material, Respondent No.1
arrived at subjective satisfaction that the detenu is a dangerous
person as defined under Section 2(b-1) of the MPDA Act and that
his activities are prejudicial to the maintenance of public order and
they cannot be dealt with under the ordinary law of the land.
Accordingly, the detaining authority passed the order of detention
dated 28 September 2021. The representation made by the detenu
was rejected. Therefore, the Petitioner-mother of the detenu is
before us with this Petition.
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3. We have heard Ms Jayshree Tripathi, learned counsel for the
Petitioner and Ms S.D. Shinde, learned APP for the
Respondent/State.
4. The learned counsel for the Petitioner urged only one ground
of challenge, i.e., delay in deciding the representation and
consequent infringement of the right of the detenu under Article
22(5) of the Constitution of India. The learned counsel submits that
there is no explanation for the period between 2 December 2021
and 22 December 2021. The learned counsel submitted that there is
variance in the dates given by the State and the detaining authority.
5. The learned counsel has relied upon the decision of the
Hon'ble Supreme Court in the cases of Rama D. Borade vs. V.K.
Saraf, Commissioner of Police and ors. 1; R.Paulsamy vs. Union of
India and anr.2; Mahesh Kumar alias Banti vs. Union of India and
ors.3; Rashid Kapadia vs. Medha Gadgil and anr. 4; Ummu Sabeena
vs. State of Kerala and ors.5; Ramchandra Kamat vs. UOI and ors.6;
Mehrunissa vs. State of Maharashtra7; Mrs. Nafisa Khalifa Ghanem
vs. Union of India and ors.8 as also the decisions of this Court in the
cases of Zahir Mohd. Raja Ansari vs. R.H. Mendonca and ors.9;
1 (1989) 3 SCC 173
2 1999 Cri.L.J. 2897 Supreme Court
3 (1990) 3 SCC 148
4 (2012) 11 SCC 745
5 (2012) ALL MR (Cri.) 317 (S.C.)
6 (1980) 2 SCC 270
7 (1981) 2 SCC 709
8 (1982) 1 SCC 422
9 (2000) ALL MR (Cri.) 1093
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Riyaz Ahmed Batatwala vs. State of Maharashtra10; Yallya @ Sagar
Irappa Kolanatii vs. The Commissioner of Police , Pune City and
ors.11; Laxman @ Kaka Yallappa Jadav vs. Commr. Of Solapur 12; and
Rupesh Ram Thakur vs. Commissioner of Police, Thane and ors.13.
6. Two reply affidavits are filed by the Commissioner of Police,
Pune City, Pune and two by Deputy Secretary, Government of
Maharashtra, Home Department (Special), Mantralaya, Mumbai,
still some dates have remained to be reconciled.
7. The detenu has made representation on 25 November 2021.
the representation is stated to be received by the Home Department
as per the detaining authority on 2 December 2021 and the State
called for parawise comments on 2 December 2021. The State has
filed the affidavit stating that remarks were called for from the
detaining authority on 1 December 2021, however, they were
received on 15 December 2021. Since there was a variance between
the dates of receipts of parawise comments, the detaining authority
stated that they were sent on 22 December 2021 and the State
asserted that they were received on 15 December 2021. In the
additional affidavit filed by the detaining authority though another
anomaly is corrected, there is no reference to the date of receipt of
parawise comments on 22 December 2021. Therefore, the detaining
11 Criminal Writ Petition No. 2873 of 2019 dt. 18.10.2019 (Bombay High Court)
13 (2018) ALL MR (Cri.) 2264
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authority continues to assert that the parawise comments were sent
on 22 December 2021 and the State continues to assert by filing an
additional affidavit that they were received on 15 December 2021.
Therefore, two different periods are stated for supplying parawise
comments from 2 December 2021 to 22 December 2021 and the
second from 2 December 2021 to 15 December 2021.
8. Even if the shorter period is to be considered, i.e., from 2
December 2021 to 15 December 2021 ,there is no explanation for
this period of 13 days, why it took 13 days to receive parawise
comments from concerned police station is not explained. The
petitioner has pointed out that the representation made by the
detenu did not require any elaborate parawise comments. The
representation is on record. The only ground is taken in the
representation that a copy of the remand order, which was a vital
document, was not furnished. Therefore, it was not such a
complicated representation that it would require 13 days for
parawise comments. Furthermore, this is not a case where an
explanation is sought to be given which is found unreasonable by
the court. This is a case where no attempt is even made to give any
explanation. The casual manner in which the representation has
been dealt with has extended even to filing the affidavit.
9. The Hon'ble Supreme Court in the case of Rama Borade
(supra), has underscored the right of Detenu under Article 22 (5) of
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the Constitution of India, and has held that the representations
should be considered expeditiously and disposed of with due
promptitude, diligence and with a sense of urgency. A similar view is
taken by the Hon'ble Supreme Court in the cases relied upon by the
learned counsel for the Petitioner.
10. With this position of law and no explanation for the delay of
13 days, the result is that the right guaranteed to the Petitioner
under Article 22 (5) of the Constitution of India being infringed
and the detenu is entitled to succeed.
10. Accordingly, Rule is made absolute in terms of prayer clause
(b), i.e., the order of detention dated 28 September 2021 is quashed
and set aside. The detenu is set forth at liberty unless required in any
other case.
(N.R. BORKAR, J.) (NITIN JAMDAR, J.)
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