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2011 DIGILAW 1284 (BOM)

Vilas Shankar Dhande v. Commissioner of Police

2011-10-13

A.M.KHANWILKAR, P.D.KODE

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Judgment : A.M. KHANWILKAR, J. 1. This petition under Article 226 of the Constitution of India takes exception to the Detention Order passed by the Commissioner of Police, Pune City, dated 2nd August, 2011 bearing D.O. No. 19Crime/ PCB-1/4358 of 2011, in exercise of powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981, read with Government Order, Home Department (Special) No. DDS-1211/CR-114/SPL-3B, dated 26th July, 2011 for breach of discipline laid down in the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates (Conditions of Detention) Order, 1981. 2. In the petition, broadly, four points have been taken to challenge the impugned Detention Order: The first is regarding subjective satisfaction recorded by the Detaining Authority; the second is regarding variance of purpose in the Grounds and the Order of Detention; the third is about the reliance placed on unverified in-camera statements; and the fourth ground is about the delay in deciding the representation by the State Government. As we are completely satisfied with the last ground, we do not intend to burden the judgment with the other three contentions raised by the petitioner. We straightaway address the fourth contention taken by the petitioner for quashing of the Detention Order impugned in this petition. 3. In the petition, it is stated that the petitioner made representation to the State of Maharashtra on 2nd September, 2011, and until filing of this petition, i.e., 8th September, 2011, his representation remained undecided. The petitioner has asserted that the representation dated 2nd September, 2011 addressed to the Additional Chief Secretary was delivered at the Inward Window of the Home Department on the 7th floor in Mantralaya, which has been duly acknowledged by the clerk of the Home Department on 2nd September, 2011 itself. 4. In the reply-affidavit filed by the Under Secretary of the Government of Maharashtra, it is nowhere stated that the initials of the clerk and the office seal appearing on the copy of the representation dated 2nd September, 2011 (Exhibit ‘D’) are not genuine, nor it is the case of the respondents that copy thereof was not delivered in the Office of the Home Department on the given date. From the record, it transpires that the representation was finally decided on 23rd September, 2011. From the record, it transpires that the representation was finally decided on 23rd September, 2011. In other words, the representation remained pending in the Office of the Appropriate Authority of the Home Department between 2nd September, 2011 till 23rd September, 2011. This has been explained in the reply-affidavit of the Under Secretary in the following words:- “3. Regarding para 6(i) (of the petition), I state that the representation dt 2.09.2011 was received in this desk on 13.09.2011 from registry of this department. After receipt of this representation, the remarks of the Detaining Authority were called immediately vide letter dt 13.09.2011. The Detaining Authority’s remarks dt 17.09.2011 were received on 17.09.2011. The concerned Assistant submitted the representation alongwith the remarks of Detaining Authority to the Under Secretary on 17.09.2011. The Under Secretary on 17.09.2011 endorsed it and submitted to Deputy Secretary. The Deputy Secretary endorsed it on 17.09.2011 and forwarded to the Additional Chief Secretary (Home). The Additional Chief Secretary (Home) was on official tour to London alongwith State delegation from 18.09.2011 and has resumed on 23.09.2011. The representation has been decided on 23.09.2011 after his reporting to office duty. Therefore there is no delay in considering the representation of the detenu after its receipt.” 5. From the said reply, three points would emerge for consideration: The first delay is between 2nd September, 2011 till 13th September, 2011. The second delay complained of is, in any case, that the Additional Chief Secretary, who was expected to decide the representation, could have conveniently decided the representation on 17th September, 2011, when it was forwarded to him before he left for his official tour to London on 18th September, 2011. The third issue that arises is: Whether the plea taken by the respondents that the representation remained pending in the office of the Additional Chief Secretary (Home) between 18th September, 2011 till 23rd September, 2011, on account of the fact that the officer was on official tour to London, can be just cause for overlooking such inaction and delay in deciding the representation? 6. Reverting to the first aspect, we have no manner of doubt that the unexplained delay in not processing the representation as soon as it was received on 2nd September, 2011 till 13th September, 2011, by itself, is a good ground for quashing the impugned Detention Order. 7. 6. Reverting to the first aspect, we have no manner of doubt that the unexplained delay in not processing the representation as soon as it was received on 2nd September, 2011 till 13th September, 2011, by itself, is a good ground for quashing the impugned Detention Order. 7. We may usefully advert to the principle expounded by the Apex Court in the case ofAslamAhmed Zahire Ahmed Shaik v. Union of India & Ors., reported in 1989 (2) Crimes 111. In that case, the representation was handed over to the Superintendent of Central Prison on 16th June, 1998. He, however, callously ignored the same, and left it unattended for a period of seven days, before forwarding it to the Government, at his pleasure, on 22nd June, 1998. In that case, delay of seven days was due to failure to forward the representation to the concerned Authority. It was frowned upon by the Apex Court, relying upon the legal position expounded in RashikSk. v. State of West Bengal, 1973(3) SCC 476 , Vijay Kumar v. State of Jammu and Kashmir & Ors., 1982 (2) SCC 43 , and Raisuddinalias Babu Tamchi v. State of Uttar Pradesh & Anr., 1983 (4) SCC 537 . The Apex Court analysed the facts of that case and answered the issue in the following words:- “In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant’s representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible.” (emphasis supplied) 8. That principle applies on all fours to the case on hand. No explanation whatsoever has been offered as to why the representation submitted by the detenu on 2nd September, 2011 in the Office of the Home Department remained pending and unattended between 2nd September, 2011 till 13th September, 2011. That reveals supine indifference, slackness and callous attitude on the part of the officials of the Home Department, who had unreasonably delayed transmission of the document to be placed before the concerned Authority expected to take a final decision thereon. That reveals supine indifference, slackness and callous attitude on the part of the officials of the Home Department, who had unreasonably delayed transmission of the document to be placed before the concerned Authority expected to take a final decision thereon. In the reported case pressed into service as aforesaid, delay in forwarding the representation was only of seven days, whereas, in the present case, it would be 11 days. Indeed, if some explanation were to be offered by the respondents, the matter could have been tested on that basis, but, in a case of no explanation whatsoever, it logically follows that it is a case of callousness and supine indifference shown by the Authorities, who are expected to process the representation on a continuous basis, till a final decision is taken thereon. 9. We are also in agreement with the criticism with regard to the manner in which the Appropriate Authority, i.e., Additional Chief Secretary (Home) has handled the representation made by the detenu. From the reply-affidavit filed by the Under Secretary, it is admitted position that the representation was forwarded to the Additional Chief Secretary (Home) on 17th September, 2011. If he had to leave for his official tour on 18th September, 2011, he was expected to decide the representation before he left for official tour to London on 18th September, 2011. From the affidavit, it appears that, immediately on return from official tour from abroad, the Additional Chief Secretary (Home), on the first day itself, decided the representation, i.e., 23rd September, 2011. Same approach could have been adopted by him on the 17th September, 2011. The Additional Chief Secretary (Home) has not filed any affidavit to explain as to what prevented him to decide the representation on the same day, on 17th September, 2011. 10. Even the third aspect in the context of the ground of delay in deciding the representation made by the detenu commends to us. In that, the reason mentioned in the reply-affidavit that the representation remained pending in the Office of the Additional Chief Secretary (Home) from 18th September, 2011 till 23rd September, 2011 on account of official tour of the said Authority can be no basis to denude the detenu of his invaluable constitutional guarantee of consideration of representation as soon as may be. 11. The petitioner has justly pressed into service the exposition of the Apex Court n the case of Rajammalv. 11. The petitioner has justly pressed into service the exposition of the Apex Court n the case of Rajammalv. State of Tamil Nadu & Anr.,reported in AIR 1999 S.C. 684 . Even in that case, the argument canvassed on behalf of the Authorities was that no decision could be taken on the representation between 9th February, 1998 till 14th February, 1998, because the Minister was on tour during the said period. The Apex Court frowned upon such plea, and observed that merely stating that the Minister was on tour, and, hence, he could pass orders only on 14th February, 1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. The absence of the Minister at the headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental rights of a citizen. The Apex Court has re-stated the legal principle enunciated in the case of K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India, reported in (1991) 1 SCC 476 ,wherein it is observed that it is a constitutional mandate commanding the Authority, to whom the detenu submits his representation, to consider the representation and dispose of the same as expeditiously as possible. Further, the words “as soon as may be” found in clause (5) of Article 22 of the Constitution reflect the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without a possible delay. Following this principle, the only option is to hold that the avoidable and unexplained delay has resulted in rendering the continued detention of the detenu illegal and constitutionally impermissible. 12. We make it clear that we are not examining the other contentions raised by the petitioner, as we are more than convinced that the one ground already adverted to hereinbefore is more than sufficient to answer the grievance of the petitioner. 13. Accordingly, this petition succeeds. 12. We make it clear that we are not examining the other contentions raised by the petitioner, as we are more than convinced that the one ground already adverted to hereinbefore is more than sufficient to answer the grievance of the petitioner. 13. Accordingly, this petition succeeds. The same is made absolute in terms of prayer clause (b) of the petition, wrongly described as prayer clause (c), which reads thus:- “That the order of detention being No. 19- Crime/PCB-1/4358.2011 dated 02.08.2011 issued under Section 3 of MPDA Act, 1981 by the Commissioner of Police, Pune be quashed and set aside and on setting aside the said impugned order, the Respondent No. 3 i.e. the Superintendent, Yerwada Central Prison, Pune be directed to release the Petitioner-detenu forthwith;” 14. At the request of the petitioner, we direct the office to forthwith furnish operative order of this judgment to the petitioner to enable him to avail of the relief granted in terms of this judgment, which is pronounced in open Court.