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2019 DIGILAW 365 (BOM)

SAYED JAFAR SAYED NASIR v. STATE OF MAHARASHTRA

2019-02-06

S.M.MODAK, SUNIL B SHUKRE

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JUDGMENT : SUNIL B. SHUKRE, J. 1. Heard. Rule. Heard forthwith by consent of parties. 2. The legality and correctness of the detention orders dated 20th February 2018 and 12th March 2018 passed by respondents no. 3 and 2 respectively is under challenge in this petition. 3. The main ground on which these orders have been assailed by the petitioner is that no effective opportunity of making representation before the detention order was passed has been afforded to him. 4. Learned counsel for the petitioner relies upon the cases of Abdul Sathar Ibrahim Manik v. Union of India and ors reported in, AIR 1991 SC 2261 ; Kamlesh Kumari Bhatia v. State of Maharashtra & ors reported in, (2001) CriLJ 3880 and Manish v. State of Maharashtra & anr reported in, (2002) CriLJ 2735. 5. According to Shri Khan, learned Additional Public Prosecutor for respondents, appropriate and effective opportunity of hearing has been granted to the petitioner and that on facts of the case, what prominently comes forth is that no prejudice has been caused to the petitioner by non-supply of his bail application and also copy of full text of the bail order passed in his favour in crime no. 714/2017. It is also submitted on behalf of respondents that registration of crime no. 714/2017 and release of the petitioner in this crime are not the only facts which have been relied upon by the detaining authority and that there are several other grounds unconnected with the afore-stated crime which have gone into passing of the prevention detention order. He further submits that for these reasons, it could not be said that any prejudice has been caused to the petitioner and so, the cases being relied upon by learned counsel for the petitioner would have no application to the facts of the present case. He is also of the opinion that if the ground of attack relating to affording of an opportunity of hearing in respect of crime no. He is also of the opinion that if the ground of attack relating to affording of an opportunity of hearing in respect of crime no. 714/2017 is taken by the Court as invalid, this Court will also have to consider the effect of Section 5A of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, dangerous Persons, Video Pirates, Sand Smugglers And Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (for short, the “Act, 1981”) which lays down that where the grounds of detention are severable, not all the grounds could be taken as invalid only because one of the grounds is found to be invalid or unconnected etc. 6. Before scrutinizing the impugned orders, we find it necessary here to place on record some admitted facts. Copy of bail application as well as copy of full text of bail order containing reasons relating to crime no. 714/2017 registered with Police Station, Frazerpura, Amravati were not placed before the detaining authority and they were also not supplied to the petitioner. What has been placed before the detaining authority and also supplied to the petitioner is an operative part of the bail order dated 27.10.2017. This operative part of the bail order does not contain any reasons. 7. A perusal of the first impugned order dated 20th February 2018 which is accompanied by the grounds of detention shows that apart from registration of various offences in crime no. 714/2017 against the petitioner and others, there are also other grounds which have gone into passing of the order. The other grounds are based upon the in- camera statements of the witnesses which would throw light on the persona of the petitioner and the activities of the petitioner by terming them as amounting to creation of terror in the locality in which the petitioner roams around and thus, it has been concluded that the petitioner is a dangerous person whose preventive detention is necessary. This order, however, as stated earlier, starts with the registration of crime no. 714/2017 and culminates into formation of opinion about this petitioner being dangerous to the society. This order, however, as stated earlier, starts with the registration of crime no. 714/2017 and culminates into formation of opinion about this petitioner being dangerous to the society. Although the impression carried by the witnesses whose statements have been recorded in camera has been shown to be a separate ground in this order, the final conclusion made regarding the petitioner being a dangerous person is by taking into consideration in consolidated manner and cumulatively both the grounds i.e. ground of petitioner involving himself in commission of various offences registered vide crime no. 714/2017 and also opinion entertained about him by the confidential witnesses. Therefore, it cannot be said that the other ground relating to impression of confidential witnesses is totally unconnected with the first ground of release of the petitioner on bail in crime no. 714/2017. On the contrary, it is only the fact of release of the petitioner on bail in this crime that has resulted into the petitioner, according to the detaining authority, moving around in the vicinity and indulging in what they term as anti-social and terrorizing acts. So, basically, it is the bail order secured by the petitioner which has given rise to what now the confidential witnesses are saying and then, neither the reasoned order of bail nor copy of bail application had been placed before the detaining authority and, therefore, there was no question of detaining authority having gone through these important documents. 8. There is another interesting fact which we feel necessary for us to consider. The petitioner has been released on bail in crime no. 714/2017 and from the facts placed on record and also reply of the State, it appears that this bail order stands even today and this is what learned counsel for the petitioner emphatically submits. It appears that no effort has been made whatsoever by the State or Frazerpura Police Station, Amravati to file an application for cancellation of bail. This is yet another fact which ought to have been considered by the detaining authority and if it has not been considered by the detaining authority, we find that a serious prejudice has been caused to the petitioner seriously affecting the liberty which has been granted to him by the learned Sessions Judge, Amravati. This is yet another fact which ought to have been considered by the detaining authority and if it has not been considered by the detaining authority, we find that a serious prejudice has been caused to the petitioner seriously affecting the liberty which has been granted to him by the learned Sessions Judge, Amravati. We do not know as to what could be the reason for the State or the concerned Police Station to have not challenged the bail order dated 27.10.2017 and to have straightway pressed into service the law of Preventive Detention which is the Act, 1981 in the present case. 9. When a person is at liberty by virtue of an order of bail granted in his favour, it is all the more necessary for the detaining authority, which intends to take away his freedom, to apply its mind to the grounds taken in the bail application and the reasons given by the concerned court for releasing such person on bail. Of course, in the case of Abdul Sathar (supra), as rightly submitted by learned APP, the Hon'ble Apex Court has laid down in categorical terms that where no prejudice has been caused to the detenue because of non-placing and non-supply of copy of bail application and reasoned bail order, the order of detention could not be invalidated by the Court. But, in this very judgment from conclusion no. (6) drawn in paragraph 12, it can be gathered that the Hon'ble Apex Court has also contemplated a situation where the detenue is at liberty on being released on bail and has observed that in such a case, it would be essential for the detaining authority to consider the bail application as well as the order granting bail. This is because of the principle that when a court of law has granted liberty to a person, it cannot be subverted casually by the executive authority by taking resort to extraordinary route barring cases where justification for doing so exists independently of bail order, and if the freedom of the detenu has its origin in a bail order passed in a crime, which is taken as one of the grounds for passing detention order, it must consider the bail order as well as the grounds taken in the application in order to overcome it. The relevant observations of Hon'ble Supreme Court made in paragraph 12 read thus : “(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.” 10. This is also the view taken by the other coordinate Benches of this Court in the cases of Kamlesh and Manish (supra). 11. So, we find that it is the registration of crime bearing no. 714/2017 together with the impression of the confidential witnesses is what has ultimately made up the first order of preventive detention passed against the petitioner which is confirmed by the second order impugned here. This order does not show that these two grounds are so separable that even if the first ground goes, the other grounds hold good for the reason that the conclusion made here is the result of cumulative effect of both the grounds holding good and not the effect of each of the grounds taken separately. Besides these two grounds, as the discussion made thus far would show, are proximately connected with each other, the reason being that it is only because of the liberty granted to the petitioner by the concerned Sessions Court that the petitioner started moving freely in society and it were his such movements that gave a consternation to the authorities and also the witnesses and but the authorities did not make any effort to challenge the bail order. As such, we find that Section 5A of the Act, 1981 would have no application to the facts of the present case. 12. Shri Khan has invited our attention to the observations made in paragraph 23 in A. Sowkath Ali v. Union of India & ors reported in, AIR 2000 SC 2662 , which reads as under : “23. This stipulates when detention order is based on two or more grounds then such order of detention shall be deemed to have been made separately. This stipulates when detention order is based on two or more grounds then such order of detention shall be deemed to have been made separately. Thus such detention order shall not be deemed to be invalid on the ground that one of such grounds is vague, non-existent, not relevant or not proximately connected.” 13. Here, we have already found that non-supply of copy of the bail application and the full text of the order to the detenu and not placing them before the detaining authority is a ground which has been cumulatively considered along with the other grounds and that it has a proximate connection with the other ground of the detention order and, therefore, as stated earlier, we reiterate our view that Section 5A of the Act, 1981 would have no application to the facts of the present case. 14. In the result, we find merit in this petition. Writ Petition is allowed. The impugned orders are quashed and set aside. The petitioner be released forthwith if not required in any other crime. 15. Rule is made absolute in the above terms.