Sudhakar Lavaji Zende v. R. H. Mendonca, Commissioner of Police, Greater Bombay and others
1999-06-09
T.K.CHANDRASHEKHARA DAS, VISHNU SAHAI
body1999
DigiLaw.ai
JUDGMENT - VISHNU SAHAI, J.:---Through this petition preferred under Article 226 of the Constitution of India the petitioner- detenu has impugned the detention order dated 25th June, 1998 passed by the first respondent, Mr. R.H. Mendonca, Commissioner of Police, Greater Bombay in exercise of the powers vested in him by sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment-1996) detaining him under the said provision of the Act. The detention order along with the grounds of detention also dated 25th June, 1998, was contemporaneously served on the petitioner- detenu on 25th June, 1998. 2. We have heard Mr. S.R. Gupte with Mr. Prakash Naik for the petitioner- detenu and Ms. A.R. Kamath Additional Public Prosecutor for the respondents. Since in our view, this petition deserves to be allowed on a purely legal point, we are not adverting to the prejudicial activities of the petitioner-detenu, contained in the grounds of detention. 3. The legal ground on which this petition deserves to be allowed is that although the detenu was on bail on 25th June, 1998, the date when the impugned detention order was passed, copy of the reasoned bail order dated 30th January, 1998, and 5th February, 1998, passed in his favour in C.R. No. 16 of 1998 under sections 170/420 read with section 34 I.P.C. of Bhoiwada Police Station were not forwarded by the Sponsoring Authority to the Detaining Authority and were not given by the latter to the petitioner detenu. Ms. A.R. Kamath, learned Counsel for the respondents, true to her customary fairness, conceded that only the operative part of the bail orders dated 30th January, 1998 and 5th February, 1998 were forwarded by the Sponsoring Authority to the Detaining Authority and their copies were supplied by the latter to the petitioner detenu. 4. A Division Bench of this Court of which one of us (Vishnu Sahai, J.,) was a member in Criminal Writ Petition No. 1185 of 1996 decided on 17th December, 1996 (Sameer Sulaman Shama v. State of Maharashtra others)1, reported in 1997 Bom.C.R.(Cri.) 559 in para 14 (iii) and (iv) has observed thus :- .............................
4. A Division Bench of this Court of which one of us (Vishnu Sahai, J.,) was a member in Criminal Writ Petition No. 1185 of 1996 decided on 17th December, 1996 (Sameer Sulaman Shama v. State of Maharashtra others)1, reported in 1997 Bom.C.R.(Cri.) 559 in para 14 (iii) and (iv) has observed thus :- ............................. "(iii) In a case where bail has been granted without giving reasons, placing of an operative part of the order granting bail which indicate the fact that bail has been granted and the terms and conditions in which the bail has been granted may be sufficient. But, in a case where in the application for bail, the detenu urges ground in support of his plea for bail and the Court grants bail by a reasoned order, copy of the complete order of the Court granting bail and the bail application on the basis of which that order has been made, are vital and material for recording subjective satisfaction regarding preventive detention of the person concerned. (iv) Once the order granting bail is a reasoned order the detenue must be furnished with the copy of the order whatever may be the nature of reasoning." A perusal of para (iii) and (iv) would show that where the bail order is a reasoned order, its complete copy has to be furnished to the detaining authority and supplied to the detenu. 5. Since in the instant case, only the operative part of the bail orders dated 30th January 1998 and 5th February, 1998 and not a complete text of the bail orders were forwarded to the detaining authority and the latter only forwarded to the detenu the operative part of the bail orders, the impugned detention order is vitiated on a twin count :- (a) On account of non-placement of a vital document, the subjective satisfaction of the detaining authority to preventively detain the detenu is rendered bad in law; and (b) On account of non-supply of a vital document to the detenu, he has been deprived of his right of making an effective representation under Article 22(5) of The Constitution of India. For the said reasons, this petition must succeed. 6. In the result, this petition is allowed. The impugned detention order is quashed and the detenu is directed to be released forthwith unless wanted in some other case. Rule is made absolute.
For the said reasons, this petition must succeed. 6. In the result, this petition is allowed. The impugned detention order is quashed and the detenu is directed to be released forthwith unless wanted in some other case. Rule is made absolute. Office is directed to communicate this order forthwith to the detenu. Petition allowed. ----