Bombay High Court
Ikhlaq Bashir Shaikh vs Radhika Rastogi And Ors on 4 April, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:16552-DB
Gokhale 1 of 10 4-wp-372-25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 372 OF 2025
Ikhlaq Bashir Shaikh ..Petitioner
Versus
Radhika Rastogi & Ors. ..Respondents
__________
Mr. Munira Palanpurwala Shaikh a/w. Sumaiya Khan for Petitioner.
Smt. M. M. Deshmukh, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 4 APRIL 2025
JUDGMENT:
(Per Sarang V. Kotwal, J.)
1. The Petitioner has challenged the Detention Order
bearing No. PSA-0324/C.R.-70/SPL-3(A), dated 15.10.2024,
issued against the petitioner U/s.3(1) of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988
(for short 'PITNDPS Act').
2. Heard Ms. Munira Palanpurwala Shaikh, learned counsel
for the Petitioner and Smt. Deshmukh, learned APP for the State.
3. The petitioner was served with the grounds of detention
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.04.09
18:35:56
+0530
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along with the Detention Order. The material given to the
petitioner mentions his past history. However, in paragraph-3 of
that communication it is clearly mentioned that paragraphs-5 to
9.6 of the grounds of detention were merely
preamble/introduction and were not actual grounds of detention
and said grounds were not relied upon by the Detaining Authority
in issuing the order of detention. The offences mentioned in
paragraph-5 are related to the registered offences at Agripada
police station, Nagpada police station, Anti Narcotics Cell, Worli
Unit and Unit 8, DCB, CID, Mumbai. All these offences were in
respect of possession of ganja, but they were of non commercial
quantity. In one of the offences, 360 bottles of Chlorphen iramine
Maleate, Codeine Phosphate syrup and Phency Rex cough syrup
were found. Paragraph-6 mentions preventive action taken
U/s.110(g) of the Cr.p.c. Paragraph-9 gives details of these
registered offences.
4. After referring to this past history, paragraph-9.7
mentions the offence which was the subject matter of passing of
the Detention Order. Based only on that ground the Detention
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Order was passed. It is specifically stated so by the Detaining
Authority in paragraph-4. It is stated that the detenue was
communicated the ground mentioned in paragraph-9.7 on which
the Detention Order was passed by the Detaining Authority,
U/s.3(1) of the PITNDPS Act.
5. That particular offence pertains to C.R.No.252 of 2023,
registered at R.C.F. police station, Mumbai, U/s.8(c) r/w. 20(b)(ii)
(B) of NDPS Act, 1985. On 28.04.2023 on prior information, in the
morning after 9:00a.m. the petitioner was apprehended in
Chembur area. He was found to be in possession of ganja weighing
3Kg and 85 grams valued at approximately Rs.36000/-. He was
arrested on that very day i.e. on 28.04.2023. He was remanded to
custody from time to time. His bail application prior to filing of the
charge-sheet was rejected by the learned Special Judge on
25.05.2023. The charge-sheet was filed on 27.06.2023. The
petitioner had preferred another bail application before the
learned Special Judge under NDPS Act, Sessions Court, Mumbai
on 15.07.2023 and the said Court granted him bail on 14.08.2023.
He was directed to execute P.R.bond of Rs.50000/- with one surety
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in the like amount. On 14.08.2023 itself he made another
application for providing provisional cash bail. Even that
application was allowed and he was directed to be released on his
providing provisional cash bail for Rs.1 lakh, for the period of four
weeks. The Petitioner was released on bail on 17.08.2023 after he
had furnished cash bail of Rs.1 lakh. On the basis of this offence
the Detention Order was passed. The Detaining Authority recorded
that the petitioner had availed of bail facilities and that he was
again likely to indulge in similar activities. Based on this
satisfaction the Detention Order was passed.
6. Learned counsel for the Petitioner made submissions
only on one ground before us. She submitted that there is a gross
delay in passing the Detention Order which suggests that passing
of the Detention Order was not necessary at all. The live-link was
snapped. The Detaining Authority had clearly stated that she was
not referring to the earlier offences and had restricted her
subjective satisfaction to the last offence registered against the
detenue i.e. C.R.No.252 of 2023 at R.C.F. police station. Issuance
of Detention Order and detaining the petitioner under that Order
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was not necessary at all, because there was a long gap between the
date on which he was released on bail and the date on which the
Detention Order was passed. In between, there were no other
allegations of committing any such offences.
7. Learned counsel relied on the Judgment of the Hon'ble
Supreme Court in the case of Sushanta Kumar Banik Versus State
of Tripura & Ors.1, in support of her contentions.
8. Learned APP opposed these submissions and relied on
the Affidavit-in-Reply filed by the Detaining Authority i.e. the
Respondent No.1-Principal Secretary (Appeals and Security) Home
Department, Government of Maharashtra. She submitted that
there was no delay in issuing the Detention Order and in any case
the period taken for issuance of Detention Order is explained by
the Detaining Authority in that affidavit.
9. We have considered these submissions. As mentioned
earlier, the petitioner had availed of bail granted to him and was
actually released on 17.08.2023. The period has to be seen from
that point onwards. The Affidavit filed by the Respondent No.1
1 Criminal Appeal No.1708 of 2022 : Decided on 30.09.2022.
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mentions that the proposal to detain the petitioner under PITNDPS
Act was initiated by R.C.F. police station, Mumbai on 07.10.2023.
The proposal was approved by the superior officer on 13.11.2023
and it was forwarded to the Screening committee on 15.11.2023.
The meeting of the screening committee was held on 15.03.2024.
On that date the screening committee approved the proposal and
submitted it to the Detaining Authority. After going through that
proposal, the Detaining Authority raised certain queries on
02.04.2024 and 19.07.2024, to which, the sponsoring authority
submitted reply on 02.07.2024 and on 06.09.2024 respectively.
The Affidavit further mentions that since the Lok Sabha Elections
were to be held in May 2024, the Detaining Authority and the
sponsoring authority were busy from April 2024 to June 2024.
After the results of the Lok Sabha Elections were declared, they got
busy in preparing for Maharashtra State Assembly elections, 2024.
But after being subjectively satisfied the officer has passed the
impugned Detention Order on 15.10.2024. It is mentioned that the
proposal consisted of 1434 pages and, therefore, some time was
taken to process the entire proposal.
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10. The explanation offered by the Detaining Authority
speaks for itself. It can hardly be termed as an acceptable and
reasonable explanation of delay. In fact, the delay has remained
unexplained. The delay is quite unreasonable. After the petitioner
was released on bail and after he availed of the bail order on
17.08.2023, it took almost two months for the sponsoring
authority to even initiate the proposal on 07.10.2023. Then it was
forwarded to the superior Officer on 13.11.2023. This delay of one
month from 07.10.2023 up to 13.11.2023 has again remained
unexplained. After that it was forwarded to the screening
committee on 15.11.2023. But again, the screening committee did
not act on it immediately. In fact, the meeting of the screening
committee was held on 15.03.2024 i.e. after a gap of four months.
No explanation is offered for this delay of four months in between.
The screening committee approved the proposal on 15.03.2024
and the proposal was submitted to the Detaining Authority. At the
first instance, the Detaining Authority raised certain queries on
02.04.2024. The sponsoring authority responded to those queries
on 02.07.2024. Even at that stage, there is no explanation of the
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delay between 02.04.2024 to 02.07.2024. After getting response
from the sponsoring authority on 02.07.2024, again fresh queries
were raised by the Detaining Authority on 19.07.2024, to which,
response was given by the sponsoring authority on 06.09.2024. At
this stage also no explanation is offered for the delay between
19.07.2024 to 06.09.2024. It is further mentioned in the Affidavit
that the Detaining Authority and the sponsoring authority were
busy from April 2024 to June 2024 in Lok Sabha Election and after
the results of the Lok Sabha Election they got busy in making
preparation for Maharashtra State Assembly Election. Finally, after
all this delay, the Detention Order was issued only on 15.10.2024.
No explanation is offered for the process adopted between
06.09.2024 when the Detaining Authority received last response
from the sponsoring authority, and 15.10.2024 when the Detention
Order was passed.
11. Thus, we have observed that there is gross delay at every
stage in initiating and processing the proposal and ultimately in
passing the Detention Order. As rightly submitted by learned
counsel for the petitioner that, if the Detaining Authority was of
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the opinion that the petitioner's activities were so prejudicial, the
authorities should have acted swiftly and urgently to prevent the
petitioner from committing these activities by issuing the
Detention Order at the earliest. However, as can be seen that the
Detention Order is passed much belatedly which would strongly
indicate that issuance of Detention Order was a mere formality
and there was no real necessity of issuing that order.
12. Learned counsel for the petitioner has rightly relied on
the observations of the Hon'ble Supreme Court in the case of
Sushanta Banik (supra). The relevant paragraph-20 reads thus:
"20. It is manifestly clear from a conspectus of the above
decisions of this Court, that the underlying principle is that if
there is unreasonable delay between the date of the order of
detention & actual arrest of the detenu and in the same
manner from the date of the proposal and passing of the order
of detention, such delay unless satisfactorily explained throws
a considerable doubt on the genuineness of the requisite
subjective satisfaction of the detaining authority in passing
the detention order and consequently render the detention
order bad and invalid because the "live and proximate link"
between the grounds of detention and the purpose of
detention is snapped in arresting the detenu. A question
whether the delay is unreasonable and stands unexplained
depends on the facts and circumstances of each case."
These observations are squarely applicable to the facts
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of the present case. The delay from the date of proposal and
passing of order and even delay in initiation of proposal has
remained unexplained. Whatever explanation is offered is
unsatisfactory. In this view of the matter, the Detention Order
cannot be sustained and is liable to be set aside.
13. Hence, the following order:
ORDER
i) The Rule is made absolute in terms of prayer
clause (a); which reads thus:
"a) To quash and set aside the said order of detention
bearing PSA-0324/C.R.-70/SPL-3(A), dated
15.10.2024, issued against the petitioner U/s.3(1) of
the PITNDPS Act, 1988."
ii) The petitioner be released forthwith if not
required in any other case.
iii) It is made clear that this order and these
observations are restricted to consideration of the
Detention Order and it shall not affect any other
action which the authorities can take in
accordance with law.
iv) The Petition is disposed of.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
