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1999 DIGILAW 483 (BOM)

Begum Bee v. R. H. Mendonca, Commissioner of Police & another

1999-07-26

T.K.CHANDRASHEKHARA DAS, VISHNU SAHAI

body1999
JUDGMENT - SAHAI VISHNU, J.:---Through this writ petition preferred under Article 226 of the Constitution of India the Petitioner, who styles herself as the mother of the detenu Mohamed Yusuf alias Taklya Yusuf Abdul Munsi Shaikh, has impugned the detention order dated 24th November, 1998, passed by the 1st respondent Mr. R.H. Mendonca, the Commissioner of Police, Brihan Mumbai, detaining the detenu under 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). 2. The detention order along with the grounds of detention also dated 24th November, 1998 was served on the detenu on 11-2-1999. True copies of the detention order and the grounds of detention are annexed as Annexures "A" and "C" respectively to this writ petition. 3. The prejudicial activities of the detenu necessitating the issuance of the impugned detention order are stipulated in the grounds of detention. Their perusal shows that the impugned detention order is founded on one C.R. viz. C.R. No. 95/98 under sections 452, 341, 427, 504 and 506 Indian Penal Code arising out of complaint dated 14-6-1998 filed at Malwani Police Station against the detenu by one Mina Begum and two in camera statement of witnesses "A" and "B" respectively which incriminate the detenue. 4. We have heard Mr. U.N. Tripathi for the Petitioner and Mr. Rajiv Patil A.P.P. for respondents. Although Mr. U.N. Tripathi learned Counsel for the petitioner has pleaded as many as five grounds, stipulated as Grounds 5-A to 5-E in the writ petition, but we are not adverting to all the grounds inasmuch as, in our view, this writ petition deserves to succeed on ground 5-B alone. Ground 5-B in short is that the last prejudicial activity referred to in the grounds of detention against the detenu is the in-camera statement dated 19-6-1998 of witness B. It has been urged in ground 5-B that in between 19-6-1998 and the date on which the detention order was issued there was a delay of about 6 months, resulting in the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him being snapped. 5. Ground 5-B has been replied to in para 9 of the return of the Detaining Authority. 5. Ground 5-B has been replied to in para 9 of the return of the Detaining Authority. In the said paragraph the Detaining Authority has averred that the last incident mentioned in the grounds of detention is the in-camera statement dated 19-6-1998. He has further averred therein that the Senior Inspector of Police, of Malvani Police Station submitted his proposal through proper channel on 18-4-1998, (Mr. Rajiv Patil, learned Counsel for the respondents urges that this is a typing mistake and in place of 18-4-1998 it should be read as 14-8-1998) to Assistant Commissioner of Police, Malad Division Mumbai, who considered the same and with his remarks submitted it to the Deputy Commissioner of Police, Zone-X, on 17-8-1998. The Deputy Commissioner of Police, Zone-X, received the proposal on 19-8-1998 and with his recommendation submitted it to the Additional Commissioner of Police, North West Region, Mumbai, who on 20-8-1998 recommended and forwarded it to the P.C.B. C.I.D. Mumbai, who received it on 18-9-1998 and submitted it to the Assistant Director of Public Prosecution for legal opinion and the latter gave his detailed opinion on 23-9-1998. On 25-9-1998 with the opinion of Assistant Director of public prosecutor the proposal was submitted to the Assistant Commissioner of Police (Preventive) who on the same day with his recommendations submitted it to the Deputy Commissioner of Police (Preventive) and the latter in turn with his recommendation forwarded it to the Additional Commissioner of Police (Crime) on 26-10-1998, who in turn recommended it on 28-10-1998 to the Detaining Authority which was received by the Detaining Authority on 5-11-1998. Thereafter the Detaining Authority considered the proposal and prima facie found that it was a fit case for detention and therefore directed the office of P.C.B. C.I.D. to prepare the compilation of translation. The said office complied with the directions of Detaining Authority on 21-11-1998 and on 24-11-1998 the proposal was placed before the Detaining Authority who the same day formulated the impugned detention order and the grounds of detention. 6. We have examined the ground 5-B and the reply of the Detaining Authority contained in para 9 of his return and in our view at three different stages there was a substantial unexplained delay in the issuance of the detention order. Those stages are as under : A : Between 19-6-1998 and 14-8-1998; B : Between 20-8-1998 and 18-9-1998; C : Between 25-9-1998 and 26-10-1998. Those stages are as under : A : Between 19-6-1998 and 14-8-1998; B : Between 20-8-1998 and 18-9-1998; C : Between 25-9-1998 and 26-10-1998. The Supreme Court in the case of (Smt. Hemlata Kantilal Shah v. State of Maharashtra and another)1, 1982(2) Bom.C.R. (S.C.)218 in paragraph 6 has observed thus : ".............Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must satisfactorily explained by the Detaining Authority." In our view the delay in the three pockets, referred to above, has not been satisfactorily explained and therefore the impugned detention order would be vitiated on the vice of delay in its issuance. We also feel it pertinent to refer to the decision of the Supreme Court reported in J.T. 1992(3) S.C. 261, (Pradeep Nilkanth Paturkar v. Shri S. Ramamurthi others)2. A perusal of the said decision, particularly para 14, would show that where a plea of delay in the issuance of detention order is taken, the unexplained delay, whether short or long, should be explained and if the same is not explained, the detention order would have to be quashed. In our view the ratio laid down in the said case would have full application to the present case. To repeat the substantial delay in three pockets stipulated in the preceding paragraph has not been satisfactorily explained by the Detaining Authority. 7. In our view on account of the aforesaid delay the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has been snapped and the detention order has been rendered unsustainable in law. 8. For the said reasons we allow this writ petition; quash and set aside the impugned detention order; and direct that the detenu, Mohamed Yusuf alias Taklya Yusuf Abdul Munsi Shaikh shall be released forthwith unless wanted in some other case. Rule is made absolute. Writ petition allowed. -----