Shahnawaj Khan s/o. Ismail Khan v. State of Maharashtra
2014-01-09
A.S.CHANDURKAR, B.R.GAVAI
body2014
DigiLaw.ai
JUDGMENT B.R GAVAI, J. :- Rule. Rule is made returnable forthwith. Heard by consent of both the parties. 2. The petitioner has filed the present petition seeking the Writ of Habeas Corpus and praying for quashing and setting aside the order of detention dated 16th of July, 2013 passed by respondent no.2 along with order dated 4th of September, 2013 passed by respondent no.1. 3. The petitioner came to be detained by the respondent no.2 by order dated 16th of July, 2013 in exercise of powers conferred to him under Section 3 of the Maharashtra Prevention of dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Amendment of 2009) (hereinafter referred to as the 'said Act' for the sake of brevity). The said order came to be confirmed by respondent no. 1 - State vide order dated 4th of September, 2013. Being aggrieved thereby, the present petition. 4. Shri Daga, learned Counsel appearing on behalf of the petitioner, submits that the Authority has taken into consideration three crimes and four in-camera statements while passing the impugned order. He submits that insofar as the first two crimes are concerned, the same are related only against individual and therefore, same cannot be taken into consideration on the ground which would affect the public order. The learned counsel submits that at the most same would be against the law and order. Insofar as third ground is concerned, the learned counsel submits that the same is also not proximate to the detention order and there is considerable delay between the registration of the said offence i.e. 15th of January, 2013 and passing of the detention order dated 16th of July, 2013. It is further submitted that, insofar as other in-camera statements, one is recorded on 28th of March, 2013 and another is recorded on 2nd of April, 2013. However, all the four in-camera statements are verified on 24th of April, 2013. The learned counsel further submits that as per reply filed by respondent no.2, the proposal was sent to the Detaining Authority on 20th of April, 2013. It is, therefore, submitted that if the proposal is submitted on 20th of April, 2013, then the incamera statements which have been verified on 24th of April, 2013, could not have been taken into consideration while passing the impugned orders.
It is, therefore, submitted that if the proposal is submitted on 20th of April, 2013, then the incamera statements which have been verified on 24th of April, 2013, could not have been taken into consideration while passing the impugned orders. The learned counsel further submits that there is inordinate delay from the date of the receipt of the proposal and passing of the impugned orders. The learned counsel submits that though specific ground in that regard is taken in paragraph no.6 (h) of the petition, the reply is vague. He submitted that on short ground, the petition deserves to be allowed. 5. The learned counsel relies on the judgment of the Division Bench of this Court in the case of Niyazuddin @ Sonu Sirajuddin Ansari vs. State of Mah. and anr. reported in 2013 ALL MR(Cri) 3870. 6. Smt. Dangre, learned Additional Public Prosecutor, vehemently opposes the petition. The learned APP submits that insofar as the third crime is concerned, it is a crime which is committed in a broad-daylight in a busy locality. The learned APP, therefore, submits that the same has an effect of terrorizing public at large and as such would clearly affect the public order. The learned APP further submits that all the in-camera statements relate to the threats given by the present petitioner to the citizens in a busy locality with a use of gun and knife and as such same would clearly affect the public order. The learned APP submits that the truthfulness or otherwise of the material or sufficiency or insufficiency thereof cannot be a ground to be looked into by this Court while exercising the jurisdiction under Article 226 of the Constitution of India. The learned APP, therefore, submits that the petition deserves to be dismissed. 7. We find that, in the facts and circumstances of the case it would not be necessary to go into the other issues inasmuch as the petition deserves to be allowed on the short ground of delay. The petitioner has specifically stated thus in paragraph No.6(h). "6(h). It is submitted that in present case alleged last prejudicial activities had taken place on 15/1/2013 when C.R.No.12/2013 was registered against petitioner and the order of detention was passed on 16/7/2013 i.e. after about 6 months and thus, the live link between last prejudicial activity and passing of detention order is snapped and thus, the detention becomes illegal.
"6(h). It is submitted that in present case alleged last prejudicial activities had taken place on 15/1/2013 when C.R.No.12/2013 was registered against petitioner and the order of detention was passed on 16/7/2013 i.e. after about 6 months and thus, the live link between last prejudicial activity and passing of detention order is snapped and thus, the detention becomes illegal. The said delay has not been considered by respondent no.2 while recording his subjective satisfaction and thus, the order of detention is rendered illegal." The same has been replied thus : "The contentions raised in this para are denied. The answering respondent crave leave of this Hon'ble Court to rely upon the reply given against para No.6(d) of the writ petition to answer the contentions raised in this para." 8. It can thus clearly be seen that though the ground of delay has been specifically pleaded by the petitioner, the same has been denied by the respondent Authority. It is pertinent to refer the affidavit of the respondent no.2, which reads thus : "It is humbly submitted that, on the basis of three serious offences i.e. (i) C.R.No.10/2012 registered with the Police Station Yashodhara Nagar U/S 420, 468, 469, 471, 34 of the IPC (ii) C.R.No.110/2012 U/S 420, 468, 34 of the IPC (iii) C.R.No.12/2013 u/s 387, 34 IPC r/w Section 3/25 of the Indian Arms Acts and four in-camera statements of witnesses i.e. in-camera statements of witness 'A' and 'B' recorded on 28/3/2013 and in-camera statements of witness 'C' and 'D' recorded on 2/4/2013 respectively the Police Inspector, Police Station Yashodhara Nagar Nagpur forwarded a proposal to the Detaining Authority through proper channel on 20/4/2013. After Scrutiny of the Proposal at every stage it was received by Crime Branch on 30/4/2013. After preparing the grounds of detention and fair typing of all the relevant documents, translation of the grounds of detention and other relevant documents in the language known to the detenue i.e. in Hindi, the detention order was passed on 16/7/2013. The detention order was served on 16/7/2013. Hence, there is no delay and there is live link between the last prejudicial activity of the petitioner and passing of the detention order." 9.
The detention order was served on 16/7/2013. Hence, there is no delay and there is live link between the last prejudicial activity of the petitioner and passing of the detention order." 9. It can thus clearly be seen that though the last of the Crimes which has been taken into consideration is registered on 15th of January, 2013 and the statements which have been taken into consideration on 20th of March, 2013 the detention order has been passed on 16th of July, 2013. It can thus be seen that from last of the crimes there is a gap of around six months before passing the impugned order. The period of six months cannot be said to be proximate or having nexus to the objective to be achieved. 10. Insofar as in-camera statements are concerned, we have personally verified the record. The record shows that the statements though recorded earlier, the same have been verified by the Assistant Commissioner of Police on 24th of April, 2013. If the contention that the proposal, which was sent to the Detaining Authority on 20th of April, 2013, was received by the Crime Branch on 30th of April, 2013 then it is difficult to understand as to how the statements, which are verified subsequently, could be taken into consideration by the Authority for arriving at subjective satisfaction. This has not at all been explained by the respondent. In any case, between 2nd of April, 2013 and passing of the order, there is a gap of almost 3½ months. Apart from that, the proposal which was forwarded, according to the respondents, by the Detaining Authority on 20th of April, 2013, was received by Crime Branch on 30th of April, 2013. It can thus be seen that the period often days was required to travel the distance of less than 10 kms. Even after that, it is stated that period taken for translating the document was between 30th of April, 2013 and 16th of July, 2013. It can thus be seen that, according to the respondents, it took 21h months for translating the document. 11. The Division Bench of this Court in the case of Niyazuddin Ansari vs.. State of Mah. and anr. (supra), relying on the judgment in the case of Pradeep Nilkanth Paturkar vs.. S.Ramamurthi and ors. reported in 1993 Supp (2) SCC 61, has observed thus " 12.
11. The Division Bench of this Court in the case of Niyazuddin Ansari vs.. State of Mah. and anr. (supra), relying on the judgment in the case of Pradeep Nilkanth Paturkar vs.. S.Ramamurthi and ors. reported in 1993 Supp (2) SCC 61, has observed thus " 12. It is further stated that after 05/11/2012, the time was required for preparing the grounds of detention, fair typing, translation of grounds of detention and other relevant documents in the language known to the detenu. We find that the said period is almost 15 days and the explanation in this regard is vague. Particularly so, when we find that the translation itself is incorrect, it is difficult to understand as to why such a long period was taken only for typing the documents and translating English version incorrectly into Hindi version. As held by the Apex Court in Pradeep Paturkar's case (supra), unexplained delay, whether short or long, especially when the petitioner was taken a specific plea of delay, vitiates the detention order. As such, in our view, the reliance placed on the judgment of the Apex Court in Pradeep Paturkar's case (supra) is well founded." It can thus be seen that in the said case Court has found that the period of fifteen days which was consumed for translating the documents into Hindi was itself fatal to the case of the State. In the present case, the delay is almost of more than 2½ months. 12. The Apex Court in the case of Rushikesh Tanaji Bhoite vs.. State of Mah. and ors. reported in 2012 ALLSCR 1373 has held that once the detention order of detenue is held to be illegal, his detention for single day would be contrary to constitutional mandate. 13. In that view of the matter, we hold that the impugned order is not sustainable in law. The detention of the petitioner is held to be illegal. 14. The petition is allowed. The impugned orders are quashed and set aside. The petitioner is directed to be released forthwith if not required in any other Crime. Rule is made absolute in aforesaid terms with no order as to costs. Petition allowed.