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2008 DIGILAW 163 (BOM)

Nanda Sinil Selvedor v. D. Sivanandhan

2008-02-01

BILAL NAZKI, S.A.BOBDE

body2008
Judgment 1. The Petitioner is the wife of the detenu who has filed this petition challenging the order dated 3rd February 2007 passed by the detaining authority under Section 3(1) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "the said Act".). 2. The counter affidavit has been filed by the Respondents. We have gone through the record and heard the learned counsel appearing for the parties. The learned counsel for the Petitioner submits that the grounds of detention show complete non application of mind and also creates a suspicion with regard to manipulation of material which was considered by the detaining authority for passing the order of detention. In the grounds of detention along with the material which is supplied to the detenu on the basis of which the detaining authority came to subjective satisfaction that the detenu needs to be detained in terms of the Act, one of the incidents referred to in the grounds of detention is an incident relating to a complaint made by one Mr. Ratan Jagannath Khayani along with his family which culminated into registration of a case being C.R. No. I - 276/2006 under Sections 392 and 342 read with Section 34 of the Indian Penal Code read with Sections 5 and 34 of Bombay Money Lenders Act, 1947. The offence was registered by Ulhasnagar Police Station on 16/12/2006. On 18/12/2006, the detenu moved Bail Application and on 20/12/2006, he was granted bail. 3. Learned counsel for the Petitioner submits that even if the allegations made in the complaint are taken to be true, this was the case regarding money transaction between the detenu and complainant. Even the prosecution admitted that the complainant owed money to the detenu and when detenu demanded it, there were some altercations between the parties. He submits that the detaining authority had already decided that the detenu should not come out from the prison. Therefore, immediately at the time when his bail application was moved, the detaining authority tried to create a record and material for the purpose of detaining the detenu. On 20th December 2007 the detenu was released on bail. On 18th December 2007, he was arrested. Therefore, immediately at the time when his bail application was moved, the detaining authority tried to create a record and material for the purpose of detaining the detenu. On 20th December 2007 the detenu was released on bail. On 18th December 2007, he was arrested. On 19th December, he moved bail application and the Police received anonymous complaint regarding conduct of the detenu on 18/12/2006 and they went to the area for making an enquiry and they got two persons who made the statements against the detenu. On 21st and 22nd December 2006, they were shown to be Mr. A and Mr. B. Their identity was not disclosed to the detenu, on the basis of which the detaining authority reached the conclusion that the detenu needs to be detained. Even if one goes by these incidents, they also do not show anywhere that there was any threat to public order by the incidents which the unknown witnesses told to the Police. 4. We have our own doubts about the material collected in such a fashion and testimony of the persons whose identity is not disclosed to the detenu. 5. Learned counsel for the petitioner relies on the Supreme Court Judgment reported in 2000 ALL MR (Cri) 1503, Phulwari Jagdambaprasad Phatak Vs. R.H. Mendonca & Ors. In this case the Supreme Court did not consider in detail as to whether such material should be considered by the detaining authority or not. The Supreme Court also did not consider the question whether holding of names of persons who depose against a detenu would effect his right to make representation in terms of Article 22 of The Constitution of India. 6. The importance of supplying material on which the detaining authority relies before reaching the subjective satisfaction is supposed to be given to the detenu in order to afford him an opportunity to make effective representation in a case of statements made against detenu by anybody, would like to know first thing a detenu, in order to controvert such a statement, is the name of the person who deposed against him. 7. These aspects were not considered by the Supreme Court in the judgment referred. But in any case the Supreme Court created safeguards by holding that, the facts stated in the statements so recorded should be true and should have a reasonable nexus with the purpose for which the order is passed. 7. These aspects were not considered by the Supreme Court in the judgment referred. But in any case the Supreme Court created safeguards by holding that, the facts stated in the statements so recorded should be true and should have a reasonable nexus with the purpose for which the order is passed. There is nothing to show any of the statements made by the unknown witnesses were statements of facts. 8. Therefore, the way in which these statements were collected and there being nothing on record to show statements so rendered revealed facts, the grounds of detention can not be sustained. 9. We allow this Writ Petition, quash the order of detention and direct to release the detenu forthwith, if he is not required in any other case. Petition allowed.