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2002 DIGILAW 610 (BOM)

Mohammedali Samiulla Shaikh v. M. N. Singh, Commissioner of Police & others

2002-07-04

A.S.AGUIAR, D.G.DESHPANDE

body2002
JUDGMENT - D.G. DESHPANDE, J.:---Heard Mr. Tripathi for the petitioner-detenu and Ms. A.R. Kamat, learned A.P.P. for the State. 2. The order of detention in this case was passed on 10-12-2001. It was served upon the detenu on 15-12-2001. The detention order is based on two C.Rs. and two in-camera statements vide C.R. Nos. 205 of 2001 and 252 of 2001. In the petition the detenu has challenged the detention on number of grounds. However, Mr. Tripathi restricted himself to only three grounds, namely grounds (A), (B) and (F). 3. Ground (A) pertains to delay. According to Mr. Tripathi the last in-camera statement was recorded on 1-10-2001. However, the detention order was passed on 10-12-2001 and therefore according to him this delay of 2 months and 11 days is fatal and on account of delay the detention order is liable to be quashed. The second ground (B) raised by Mr. Tripathi is that the detenu was in judicial custody of the aforesaid C.Rs. and so far as C.R. No. 205 of 2001 is concerned offence against the detenu were under sections 392, 397, 342, 452 of I.P.C. and under C.R. No. 252 of 2001 offences were under sections 394, 395, 397, 307, 34 I.P.C. r/w 3, 25, 27 Arms Act r/w 37(a) of the Bombay Police Act. Therefore according to him there was no material before the Detaining Authority to conclude that the detenu was likely to be released on bail. The third ground (F) raised by Mr. Tripathi was that the documents supplied to the detenu and referred to the Detaining Authority there is a spot panchnama of C.R. No. 205 of 2001 but the Detaining Authority in the grounds of detention has not referred to this spot panchnama and therefore this amounts to consideration of extraneous material. Mr. Tripathi for this purpose relied upon a judgment of the Supreme Court reported in A.I.R. 1990 S.C. 1272 (Vashisht Narain Karwaria and State of U.P. and another)1. So far as delay is concerned Mr. Tripathi relied upon the judgment of the Supreme Court reported in 1994 Cri.L.J. 620 (Pradeep Nilkanth Paturkar v. S. Ramamurthi and others)2. So far as ground (B) i.e. second ground is concerned that the detenu was likely to be released on bail because he was involved for offences under sections 392, 397/etc. we are unable to agree with this submission made by Mr. Tripathi. So far as ground (B) i.e. second ground is concerned that the detenu was likely to be released on bail because he was involved for offences under sections 392, 397/etc. we are unable to agree with this submission made by Mr. Tripathi. In similar matter where same offences were involved, this very Bench has held in (Criminal Writ Petition No. 278 of 2002)3, decided on 26-6-2002 that when aforesaid offences had been involved it cannot be said that there is no chance of getting bail, therefore, this objection in the present case is also required to be rejected. 4. So far as delay is concerned as rightly argued by the learned A.P.P. facts in the judgments of Supreme Court reported in 1994 Cri.L.J. 620 Pradeep Nilkanth Paturkar v. S. Ramamurthi and others, will not apply to the facts of this case. In that case there was delay of 5 months and 8 days from the last in-camera statements and 4 months and 10 days from the date of submission of the proposal. Further in that case there was no explanation whatsoever from the Detaining Authority about this delay. In para 9 of the said judgment the Supreme Court has laid down the following criteria: "The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test or proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test or proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the Detaining Authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case.” In the instant case the last in-camera statement was recorded on 1-10-2001 and detention order was passed on 10-12-2001. Four affidavits have been filed for explaining the delay. The affidavits have given details about the process through which the proposals had to go and considering the explanation. It cannot be said that the delay is not explained. The delay is properly and satisfactorily explained. More important aspect of the matter is that looking to the activities of the detenu the period of 2 months and 11 days cannot be said to have resulted in snapping live-link between his activities and detention order. Therefore we do no find any merit in this argument. 5. The third ground was that spot panchnama of C.R. No. 205 of 2001, copy of which was given to the detenu and Detaining Authority and the same was considered by the Detaining Authority but not being referred to in the detention order. In this regard the learned A.P.P. relied upon the judgement of the Supreme Court reported in A.I.R. 1988 Supreme Court 723 (State of Gujarat v. Sunil Fulchand Shah and another)4, where the Supreme Court has held that: "We do not find any merit in this contention and hold that it is not necessary to mention in the grounds the reaction of the Detaining Authority in relation to every piece of evidence, separately." The Detaining Authority has rightly explained in the affidavit that spot panchanama was not considered by him as a vital and important document because there was sufficient other material before him so far as C.R. No./ 205 of 2001 is concerned. Mr. Mr. Tripathi also relied upon a judgment of the Supreme Court reported in A.I.R. 1990 Supreme Court 1272 Vashist Narain Karwarla v. State of U.P. and another in support of his contention that the detention order is based on document, copy of which is not furnished to the detenu then the detention order becomes invalid because of consideration of extraneous material. In that case Detaining Authority has relied upon two letters which read as follows: "It is submitted that Shri Vashistha Narayan Karvaria alias Bhukkal, the aforesaid accused is a hardened criminal and has a gang. In his gang his son Kapil and two other big offenders Ram Chandra Tripathi and Santosh Kumar Tripathi son of Gaya Prasad, resident of Gansupur, P.S. Poormufti, District Allahabad, are included. These people often used to commit heinous crimes, by which terror and fear prevails in the people. Many crimes are registered against Vashishtha Narayan Karvaria in many Police Stations." It appears from the aforesaid judgment that no particulars of the so-called many crimes registered against Vashistha Narayan Karvaria nor any documents pertaining to these crimes were furnished to the detenu or Detaining Authority, therefore, in that background of the matter the Supreme Court held that Detaining Authority was influenced or about to be influenced by extraneous material. 6. Spot panchnama about which Mr. Tripathi is making grievance is part and parcel of C.R. No. 205 of 2001. Other important and vital documents pertaining to the other C.R. were furnished to the detenu and spot panchnama was also furnished. It is not the case that Detaining Authority has considered some document which was not furnished to the detenu or has considered some material which was also not made available to the detenu. Therefore, in this background making no reference to the spot panchnama in the grounds of detention does not at all affect the validity of the detention order. We do not find any merit in this petition, the same is dismissed. Rule is discharged. Petition dismissed. -----