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2013 DIGILAW 1863 (BOM)

MAHENDRA RAMESH DESAIKAR v. K. P. RAGHUVANSHI

2013-09-12

A.S.OKA, REVATI MOHITE DERE

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JUDGMENT : A.S. OKA, J. 1. Heard the learned counsel for the petitioner. The challenge in this petition under Article 226 of the Constitution of India is to the order of preventive detention dated 5th April 2013 passed by the first respondent in exercise of powers under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as the said Act). 2. The learned counsel for the petitioner has pressed into service ground (D) of the petition. The relevant part of the ground (D) reads thus:- " (D) That assuming without admitting that the detaining authority had himself scanned all the documents and the entire material, and had himself formulated the grounds of detention, if is enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the detaining authority had considered all the documents and the entire material together at one and the same time. That it is accordingly enjoined upon the detaining authority to disclose to this Hon'ble Court as to on which date the detaining authority received the proposal for the detention of the detenu and as to how many documents were received by the detaining authority along with the proposal. That it is further enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the detaining authority had received any additional documents after he had received the documents initially along with the proposal and if so, when and which documents, the detaining authority had so received, at a later date or dates. That if the detaining authority had formulated the grounds of detention by considering some of the documents from amongst the total number of documents (Annexure-D) as listed in the list of documents then it is further enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether after the receipt of the additional documents at a later date, the detaining authority had rescinded the grounds of detention which were earlier formulated and whether the detaining authority had reformulated the grounds of detention once again by reconsidering the documents already considered along with the additional documents received at a later date or dates together at once and the same time." 3. There is a reply filed by the first respondent dealing with this ground. Relevant part of the paragraph 7 of the reply read thus:- "7. There is a reply filed by the first respondent dealing with this ground. Relevant part of the paragraph 7 of the reply read thus:- "7. I state that considering the prejudicial activities of the detenu and his associates, the Sponsoring Authority decided to prepare the proposal for taking preventive action against the detenu. The said proposal was thereafter prepared on 1-3-2013 and forwarded through proper channel. The said proposal was first placed before the Assistant Commissioner of Police, who, after carefully, going through the same, gave his endorsement and in-camera statement, which are recorded by the Sponsoring Authority duly verified on 4-3-2013 and the same was sent to the concerned DCP, Zone I-II, Kalyan. The DCP gave his endorsement after perusal the same on 5-3-2013 and forwarded it to the Additional Commissioner of Police, Kalyan Division. The Additional Commissioner of Police, after carefully going through the same gave his endorsement on 9-3-2013 and forwarded the papers to M.P.D.A. Branch of the Commissioner of Police, Thane Office on 13-3-2013 and they were sent to the A.C.P. Prevention on 18-3-2013 and after again doing all the verification by the DCP Crime 21-3-2013 forwarded to the Additional C.P. Crime for his verification on 26-3-2013, and the Additional C.P. Crime after verifying again forwarded the whole record to me on 28-3-2013. After careful perusal of the record, I approved the grounds of detention after my subjective satisfaction. The same was sent for translation in Marathi to the M.P.D.A. Branch. On 3-4-2013 it came to ACP and on the very same day DCP after perusal sent to the Additional C.P. and Additional C.P after perusal on 4-4-2013 sent to my office. On very same day, I perused the draft which was correct and accordingly on 5-4-2013 being a Detaining Authority, I issued the Detention Order." 4. As there is no specific statement made that the Detaining Authority himself formulated the grounds of detention, We have perused the original file produced by the learned APP for perusal of the Court. We find that the Additional Commissioner of Police made a noting on 26th March 2013 recording that action of preventive detention deserves to be taken against the detenu. 5. We find that the Additional Commissioner of Police made a noting on 26th March 2013 recording that action of preventive detention deserves to be taken against the detenu. 5. Below the endorsement dated 26th March 2013 made by the Additional Commissioner of Police, the first respondent-Detaining Authority has recorded a short order dated 28th March 2013 recording that he was convinced that this was a fit case to pass an order of preventive detention against the detenu. The order recorded by the first respondent does not refer to any ground of detention formulated by him. The file shows that till 28th March 2013, the grounds of detention were not at all formulated. On the contrary, below the said order, there is a noting made by the Assistant Police Inspector MPDA Branch, Mumbai stating that the draft grounds were put up by him. Thus, it is crystal clear that the first respondent being the Detaining Authority had not at all formulated the grounds and without formulating the grounds of detention, he has purported to record subjective satisfaction that it was a case of passing an order of preventive detention. The grounds of detention were not at all formulated by the Detaining Authority. It appears that the draft of grounds was prepared subsequently after the Detaining Authority recorded a subjective satisfaction. Hence, there is a complete non-application of mind by the Detaining Authority. Subjective satisfaction could have been recorded only on the basis of the grounds. Therefore, we are of the view that the order of detention is vitiated. 6. Hence, petition must succeed. Hence, we pass the following order: Rule is made absolute in terms of prayer clause (a) which reads thus:- " (a) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate writ, order or direction quashing and setting aside the said order of detention bearing No. TC/PD/MPDA/02/2013 dated 5-4-2013 and be pleased to direct that the detenu Shri Mukesh @ Mukya Ramesh Desaikar be set at liberty." 7. All concerned to act upon an authenticated copy of this order.