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2012 DIGILAW 1134 (BOM)

Iqbal Sikandar Pathan v. Commissioner of Police

2012-06-27

A.M.KHANWILKAR, A.R.JOSHI

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JUDGMENT A.M. KHANWILKAR, J. - Rule. Rule is made returnable forthwith. Counsel for the respective Respondents waives notice. Heard finally forthwith, by consent. 2. This Petition, under Article 226 of the Constitution of India, takes exception to the order passed by the Commissioner of Police, Solapur, dated 2nd February, 2012, in exercise of powers under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugoffenders and Dangerous Persons and video Pirates Act, 1981 (hereinafter referred to as "the Act"). 3. It is not in dispute that when this detention order was passed, the Petitioner was already in Jail, in connection with some criminal offences. The detention order has been served on him in Jail, on 4th February, 2012. In the Writ Petition, filed before this Court, several points have been raised. But, the foremost point, which appeals to us and is indefensible, is that the order and the grounds of detention, served on the Petitioner, in Jail, itself establishes the fact that the grounds of detention were formulated and subjective satisfaction recorded thereon, by the Detaining Authority, on 3rd February, 2012. is well established position and it is too elementary to state that the detention order should be founded on the subjective satisfaction recorded by the Detaining Authority on the basis of the grounds formulated by the Authority, which has to precede the passing of the order itself. 4. In the present case, however, the detention order, served on the Petitioner, mentions the date as 02/02/2012. whereas the grounds of detention, mentions date as 03/02/2012. Notably, neither under the initials on separate pages of grounds of detention nor below the signature of the Detaining Authority, at the end of grounds of detention, the date, on which the same has been signed, is mentioned. Necessarily, therefore, the date mentioned in opening part of the body of the grounds of detention will have to be assumed as date on which the subjective satisfaction has been recorded by the Detaining Authority. That is on 03/02/2012 and not preceding the order of detention passed on 02/02/2012. 5. Although this grievance has been specifically made in Paragraph 7(a) of the Writ Petition, the reply affidavit filed by the Detaining Authority makes no attempt to deal with the same. Learned APP strongly relied upon the explanation offered in Paragraph 5 of the affidavit of the Detaining Authority, dated 14th May, 2012. 5. Although this grievance has been specifically made in Paragraph 7(a) of the Writ Petition, the reply affidavit filed by the Detaining Authority makes no attempt to deal with the same. Learned APP strongly relied upon the explanation offered in Paragraph 5 of the affidavit of the Detaining Authority, dated 14th May, 2012. We would extract the relevant portion thereof which reads thus: "The Deputy Commissioner of Police (Crime) forwarded it to me for final order on 30.01.2012. I say that after again scrutinizing the said final draft and other documents, I issued the Detention Order against the Detenu bearing D.O. No. 01/CB/DP/2012 dated 2.2.2012. I say that Detention Order was served on the Detenu on 2.2.2012. The Grounds of Detention and the documents along-with other material alongwith Marathi translation of the necessary documents were served upon the Detenu on 4.2.2012. I say that the Detenu's signature was obtained as an acknowledgment thereof." (Emphasis supplied) 6. Reliance is also placed on Paragraph 9, which obviously is in response to the ground articulated in Paragraph 7(a) of the Writ Petition. The same reads thus: "9. With reference to Para No. 7(a) of the Petition. I say that being the Detaining Authority I relied upon the material placed before me and applied my judicious mind, issued the Detention Order bearing No. D.O. No. 02.02.2012, D. O. No. l/CB/DP/2012. I denied that Order of Detention 2.2.2012 is illegal and is bad-in-law since there is total non application of mind on the part of the Detaining Authority as has been narrated in the grounds raised by the petitioner in the present petition. I say and submit that the Order of Detention dated 2.2.2012 is issued by me after having subjectively satisfied about the need to issue the same on the basis of material placed before me. I state that the detenu has raised his general ground without giving any material and legal particulars or instances of non application of mind. I say that with reference to this para I had carefully gone through record and by applying careful mind to the relevant material along with that proposal placed before me, after satisfaction prepared the grounds of detention and passed the order of detention on 02.02.2012. I say that with reference to this para I had carefully gone through record and by applying careful mind to the relevant material along with that proposal placed before me, after satisfaction prepared the grounds of detention and passed the order of detention on 02.02.2012. I say that the staff from the office of the Commissioner of Police, Solapur left alongwith grounds of detention on 3.2.2012 and served grounds to on 4.2.2012 at Yerawada Central Prison, Pune. As per provisions u/s. 8(1) of M.P.D.A. Act the detaining authority have 5 days time limit to provide grounds of detentions to detenu and as per provisions the grounds are supplied to detenu on 04.02.2012 within time limit. Therefore there is no substance in ground (a) of the petition. I have applied careful mind and detention order issued by me is legal and within the ambit of law." (emphasis supplied) 7. From the averments in Paragraph 5 of the reply affidavit, reproduced above, what can be inferred is that the Deputy Commissioner of Police (Crime) forwarded the final draft of order of detention to the Detaining Authority on 30th January. 2012. The Detaining Authority, after again scrutinizing the final draft (obviously of order of detention) and other documents, proceeded to issue the Detention Order against the detenu, which is impugned in this Petition. And, then the order was served on the detenu on 2nd February, 2012. It is nobody's case that the grounds of detention were served on the detenu on 2nd February, 2012. Admittedly, the "grounds of detention" came to be served on the detenu only on 4th February, 2012, as is stated in Paragraph 5 of the reply affidavit itself. From these averments, it is not possible to infer that the final draft of grounds of detention, formulated by the Detaining Authority himself, on the basis of which he arrived at the subjective satisfaction was complete and ready in all respects on 2nd February, 2012. before signing the detention order dated 2nd February, 2012, bearing No. 1/CB/DP/2012. 8. To the same effect, explanation offered in Paragraph 9 of the reply affidavit does not take the matter any further for the Detaining-Authority. before signing the detention order dated 2nd February, 2012, bearing No. 1/CB/DP/2012. 8. To the same effect, explanation offered in Paragraph 9 of the reply affidavit does not take the matter any further for the Detaining-Authority. Much emphasis was placed on the averment, which suggests that the staff from the office of Commissioner of Police, Solapur left along with grounds of detention on 3rd February, 2012 and served grounds on 4th February, 2012 at Yerawada Central Prison, Pune, on the detenu. The fact, as to who made note on the grounds of detention as 03/02/2012 has not been clearly stated in any of the affidavits filed before us. Going by the document (Exhibit B), which has been served on the Petitioner, the presumption wil1 be that the said grounds were ready only on 03/02/2012, as mentioned in the document itself. In that case, it necessarily fol1ows that the detention order is vitiated, as the subjective satisfaction on the basis of the grounds of detention formulated by the Detaining Authority has not been recorded by the Detaining Authority, preceding the issuance of detention order. In that case, the petition ought to succeed. 9. To reassure ourselves, we called upon the Learned APP to produce the original record. The officer, who had come to instruct the Learned APP, produced four sets of papers, when the matter was being argued yesterday, purported to be the original file. However, the said papers did not contain any endorsement as to how the date 03/02/2012 has been noted on the grounds of detention Exhibit 'B'. Significantly, that date has been inserted in the grounds of detention served on the detenu by hand. Further, the papers produced before us did not contain the notings made by the concerned officers much less by the Detaining Authority to the effect that he had formulated and finalised the grounds of detention recording his subjective satisfaction, on 2nd February, 2012, before directing issuance of the detention order on that date. As long that fact remains unexplained and unsubstantiated, we will have to assume that the grounds of detention were made ready on 3/2/2012; and therefore, the subjective satisfaction reached by the Detaining Authority was only on 3rd February, 2012 and not anterior to the passing of the detention order dated 2nd February, 2012. As long that fact remains unexplained and unsubstantiated, we will have to assume that the grounds of detention were made ready on 3/2/2012; and therefore, the subjective satisfaction reached by the Detaining Authority was only on 3rd February, 2012 and not anterior to the passing of the detention order dated 2nd February, 2012. Yesterday, we were informed that there is one more original file, which will indicate the movement of the proposal, including the circumstances in which the noting found on the grounds of detention as 03/02/2012. By way of indulgence, we kept the matter today for production of the said file. Today, on instructions, the Learned APP submits that that original file is not available as of now. The Learned APP relied upon the communication received by her from the office of the Commissioner of Police, Solapur, dated 26th June, 2012, marked as Exhibit - 'X', for sake of identification. In that sense, neither the reply affidavit of the Detaining Authority or any other State Authority, responsible for noting the date on the grounds of detention served on the detenu, as 03/02/2012, has been filed nor the circumstance in which that date is mentioned and by whom has been explained before us. Further, the stand taken by the Detaimng Authority in Para 9 of his reply affidavit has not been substantiated by any contemporaneous record inspite of giving sufficient opportunity. On the other hand, the papers, purported to be original papers produced before us are of no avail. In this peculiar situation, we cannot permit the Authorities to continue the detention of the petitioner, on the basis of the impugned detention order, which precedes the formulation of grounds of detention and recording of subjective satisfaction by the Detaining Authority thereon. For going by the grounds of detention served on the Petitioner, the subjective satisfaction has been recorded by the Detaining Authority on 03/02/2012. 10. Accordingly, this Petition ought to succeed in terms of prayer clause (c), as the continued detention of the Petitioner, in our opinion is illegal, for the reasons recorded. Prayer clause (c) reads thus: "That the order of detention being No. 01/CB/DP/2012 dated 02.02.2012 issued under Section 3 M.P.D.A. Act, 1981 by the Commissioner of Police, Solapur against the detenu, be quashed and set aside and on quashing the order of detention the detenu be released forthwith." 11. Prayer clause (c) reads thus: "That the order of detention being No. 01/CB/DP/2012 dated 02.02.2012 issued under Section 3 M.P.D.A. Act, 1981 by the Commissioner of Police, Solapur against the detenu, be quashed and set aside and on quashing the order of detention the detenu be released forthwith." 11. Copy of this order be forwarded to the Secretary, Home Department, Mantralaya, Mumbai for information and necessary action against all concerned, if so advised. 12. The original four sets of papers, which were handed over to us and kept in sealed cover, are returned to the Learned APP. 13. The office shall forthwith issue authenticated copy of operative part of this order and all concerned to act upon the authenticated copy so issued. Petition allowed.