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2007 DIGILAW 144 (BOM)

Manoj s/o Dilip Trivedi v. State of Maharashtra

2007-02-02

K.J.ROHEE, S.R.DONGAONKAR

body2007
JUDGMENT : (Per : K.J. Rohee, J.) 1. Heard Mr. V.M. Deshpande, Advocate for the petitioner and Mr. D.B. Patel, APP for the respondents/State. 2. By this petition under Article 226 of the Constitution of India, the petitioner challenges the detention order of his brother Ankush @ Rinku s/o Dilip Trivedi under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the MPDA Act.) 3. On 8.5.2006 the District Magistrate, Yavatmal (R-2) passed detention order u/s 3(2) of the MPDA Act upon the proposal moved by Police Station Officer of Police Station, Wadgaon Road (R-3). The said detention order was approved on 16.5.2006 by the State Government (R-1) u/s 3(3) of the MPDA Act. 4. In pursuance of the detention order the brother of the petitioner was detained on 23.6.2006. The grounds on which the detention order was made were communicated to the detenu. On 1.8.2006 the detention order was confirmed by the State Government (R-1). The grounds of detention disclose that the detenu was indulged in eight criminal cases under various sections of Chapter XVI and XVII of the Indian Penal Code. 5. They further disclose that on 19.11.2005 the detenu and his associates beat Vaibhav Sudhakar Deshmukh, a third year student of Engineering College. They also caught hold of Manish Uike, took him to the pan shop and closed its shutter. The detenu and his associates created panic and the neighbouring shopkeepers shut down their shops. Crime No.96/2005 under Section 399 of the Indian Penal Code was registered against the detenu and his associates. While under police custody a knife and a mobile set was discovered at the instance of the detenu. The detenu applied for bail and by order dated 20.1.2006 he was released on bail on condition not to influence any witness or not to tamper any evidence and to give regular attendance to the Police Station. 6. The grounds of detention also referred to statements of witness A recorded on 26.3.2006 and witness B recorded on 28.3.2006 in-camera. Both the witnesses stated about the criminal activities of the detenu in the past. 7. The petitioner challenges the detention order on several grounds. However, during the course of argument, Mr. 6. The grounds of detention also referred to statements of witness A recorded on 26.3.2006 and witness B recorded on 28.3.2006 in-camera. Both the witnesses stated about the criminal activities of the detenu in the past. 7. The petitioner challenges the detention order on several grounds. However, during the course of argument, Mr. V.M. Deshpande, the learned counsel for the petitioner, restricted his submission only to ground (j) which is to the effect that from the date of his release on bail on 20.1.2006, the detenu attended the Police Station every day till he was detained on 23.6.2006. At no point of time there was any allegation from the Sponsoring Authority that the detenu misused the liberty. This fact was not brought to the notice of the Detaining Authority by the Sponsoring Authority. Hence the subjective satisfaction of the Detaining Authority was vitiated and consequently the detention order suffers from illegality. 8. Respondent nos.1, 2 and 3 opposed the petition by filing their replies. In their specific plea Respondent Nos.2 and 3 simply denied ground (j). 9. Mr. V.M. Deshpande, the learned counsel for the petitioner, vehemently contended that though the grounds of detention discloses that the detenu was released on bail on 20.1.2006 on certain conditions, the application for bail moved by the detenu and the order passed by the concerned Court thereon, were not placed by the Sponsoring Authority before the Detaining Authority. Secondly the Sponsoring Authority nowhere alleged that after the detenu was released on bail by the concerned Court, he ever misused the liberty. Mr. Deshpande pointed out that at the time of passing detention order the detenu was released on bail and there were no allegations of misusing liberty by the detenu. The bail application moved by the detenu and the order thereon are the vital documents which should have been placed before the Detaining Authority. Mr. Deshpande submitted that failure on the part of the Sponsoring Authority to place the bail application of the detenu and the order passed thereon before the Detaining Authority has vitiated the detention order as the same was passed without application of mind on the part of the Detaining Authority. It was further urged that non-supply of the copy of application and the order thereon to the detenu has deprived him of his right to prefer an effective representation under Article 22(5) of the Constitution of India. Mr. It was further urged that non-supply of the copy of application and the order thereon to the detenu has deprived him of his right to prefer an effective representation under Article 22(5) of the Constitution of India. Mr. Deshpande submitted that on this ground alone the detention order needs to be quashed. In support of his submission Mr. Deshpande relied on the following cases :- (i) Lilavati Ramchandra Gaikwad .vrs. Satish Sahney, Commissioner of Police, Greater Bombay and others, 1996 (2) M h.L.J . 316 (Bombay) . It is a case under National Security Act. A Division Bench of this Court held that : .In the absence of non placing of the order granting bail to the detenu before the Detaining Authority, the subjective satisfaction of the detaining authority had been impaired. It is a case of suppression of vital document or non application of mind or impairment of subjective satisfaction of the Detaining Authority. The order of detention was bad and could not be sustained.. (ii) Arvind Ganeshmal Jail .vrs. Union of India and others, 1998(3) M h.L.J . 934 (Bombay) , It is a case under COFEPOSA Act. A Division Bench of this Court held that : .The failure on the part of the Sponsoring Authority to place the bail application of the detenu before the detaining authority has not only vitiated the detention order since the same was passed without application of mind on the part of the detaining authority but the non-supply of its copy to the detenu has trampled upon his right of making an effective representation as mandated by Article 22(5) of the Constitution of India. Hence the detention order was quashed.. (iii) Anandi Laxman Patil .vrs. R.H. Mendonca and others, 1993 (3) M h.L.J . 596 (Bombay) . A Division Bench of this Court held that : .Since the bail application was a vital document and was not placed before the Detaining Authority and its copy was not supplied to the detenu, the impugned detention order was vitiated on a dual count. R.H. Mendonca and others, 1993 (3) M h.L.J . 596 (Bombay) . A Division Bench of this Court held that : .Since the bail application was a vital document and was not placed before the Detaining Authority and its copy was not supplied to the detenu, the impugned detention order was vitiated on a dual count. (A) On account of nonplacement of a vital document before the Detaining Authority his subjective satisfaction to detain the detenu had been impaired on the vice of non-application of mind, (B) Since the bail application was a vital document, its non-supply to the detenu had deprived the detenu of his right to prefer an effective representation under Article 22(5) of the Constitution of India.. In all the above three cases this Court had placed reliance on Abdul Sathar Ibrahim Manik .vrs. Union of India and others, AIR 1991 SC 2261 . 10. Mr. D.B. Patel, the learned APP for the respondents/State, could not satisfy us from the record that the copy of the bail application which was moved by the detenu and the order passed thereon by the concerned court were brought to the notice of the Detaining Authority by the Sponsoring Authority. Mr. Patel also failed to satisfy us from the record that the copies of those vital documents were supplied to the detenu. 11. In view of these circumstances, on one hand the subjective satisfaction of the Detaining Authority was impaired and on the other hand the detenu was deprived of his constitutional right to make effective representation against the detention order. So, on this ground alone, the detention order cannot stand and will have to be quashed and set aside. Hence, we pass the following order : 12. The petition is allowed. The impugned detention order is quashed and set aside. We direct that the detenu namely Ankush @ Rinku s/o Dilip Trivedi be released forthwith unless wanted in some other case. 13. Rule is made absolute in above terms.