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2020 DIGILAW 912 (BOM)

Ajay Nandkishor Pasi v. Commissioner of Police, Thane

2020-09-03

M.S.KARNIK, S.S.SHINDE

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JUDGMENT : M.S. Karnik, J. 1. This Petition takes exception to the impugned order of detention dated September 9, 2019 passed by the first respondent Shri Vivek Phansalkar, the Commissioner of Police, Thane, detaining the petitioner - detenu in exercise of the powers conferred by sub-section (2) of section 3 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 (Maharashtra Act No.LV of 1981) (hereinafter referred to as ‘MPDA Act’ for short). The detention order along with the grounds of detention which are also dated September 9, 2019, was served to the petitioner – detenu on November 11, 2019. The true copies of the detention order and the grounds of detention are marked as Exhibit A and Exhibit C in this Writ Petition. 2. A perusal of the grounds of detention (Exhibit C) would show that the impugned order is founded on three crime numbers namely C.R.No. I-83/19 under Sections 325, 324, 323, 143, 144, 146, 147, 148, 149, 504, 427 of the Indian Penal Code (hereinafter referred to as ‘the IPC’ for short) registered on June 13, 2019 with Wagle Estate Police Station; C.R.No.I-129/19 under sections 143, 144, 146, 147, 148, 149, 504, 506(II) of the IPC read with Section 3, 25 of the Arms Act read with Section 37(1) , 135 of the Maharashtra Police Act, 1951 registered on June 23, 2019 with Chitalsar Police Station; and C.R.No. I-73/19 under Sections 469, 500, 34 of IPC read with Section 66 (d) of IT Act 2000 registered on July 19, 2019 with Kopari Police Station. 3. A perusal of the allegations in C.R.No.I-83/2019 would reveal that three unknown persons on the instructions of the petitioner – detenu had assaulted the complainant Shri Omkar Sangvekar on June 12, 2019 with kicks and also threw stones and kicked his vehicle. The passersby instead of helping the complainant ran away due to fear. Shopkeepers also closed their shops. One of the assailants sat in Scorpio which was driven by the petitioner – detenu. The complainant stated that he knows the petitioner – detenu as a habitual criminal. The second case C.R.No. I-129/2019 relates to a complaint lodged by Shri Saurab Santosh Vartak in respect of an assault made by the petitioner – detenu on Prathmesh Palande on June 12, 2019. The complainant stated that he knows the petitioner – detenu as a habitual criminal. The second case C.R.No. I-129/2019 relates to a complaint lodged by Shri Saurab Santosh Vartak in respect of an assault made by the petitioner – detenu on Prathmesh Palande on June 12, 2019. Thereafter, on June 19, 2019, the petitioner - detenu along with others assaulted the complainant with kicks and blows. In the midnight of June 23, 2019, the petitioner – detenu along with 14 to 15 other associates created terror in the area when they came in search of the complainant Saurab. The complainant Saurab had to hide after one of his friend informed him that the petitioner – detenu and his 14 to 15 associates were searching for him and issuing threats to kill the complainant. The third case relates to C.R.No.I-73/2019 lodged by the complainant Shri Prakash Balasaheb Kothavale. It is alleged that the complainant Prakash Kothavale was assaulted on January 3, 2019 by the petitioner – detenu and his associates as they were angry with the complainant for lodging a report against the petitioner-detenu. The petitioner – detenu and his associates started spoiling the complainant’s reputation and defaming him. A photograph of his face with an animal body and another with a female body was pasted in the area. He was addressed as transgender. It is alleged that the petitioner – detenu prepared different videos of the complainant, tampered the photographs, wrote defamatory messages on them and uploaded it on Facebook, You Tube, whats app and social media. It is also alleged that the petitioner – detenu is responsible for creating social media terror by uploading his own photo with gun and rounds. The petitioner – detenu along with one Siddhu Abhange created a group of like minded criminals and named it as ‘SA Company’ and uploaded it on social media. Further, ‘in camera’ statement of witness ‘A’ was recorded on July 5, 2019 and witness ‘B’ on July 7, 2019 would show that the offence of extortion has been disclosed by them. 4. A perusal of paragraph 6 of the grounds of detention would show that the petitioner – detenu was to be detained as a “Dangerous Person” within the meaning of Section 2 (b-1) of MPDA Act. 4. A perusal of paragraph 6 of the grounds of detention would show that the petitioner – detenu was to be detained as a “Dangerous Person” within the meaning of Section 2 (b-1) of MPDA Act. The respondent No.1 recorded his subjective satisfaction that the petitioner – detenu is acting in a manner prejudicial to the maintenance of public order, peace and tranquility and that petitioner – detenu is a weapon wielding desperado, dreaded criminal striking terror in the mind of peace loving and law abiding citizens residing in the localities of Chitalsar Police Station and adjoining areas. It has been stated that the action taken against the petitioner – detenu under the normal law of the land is found to be insufficient and ineffective to deter the petitioner – detenu from indulging in criminal activities prejudicial to the maintenance of public order. 5. We have heard learned counsel for the parties. 6. Although in this Writ Petition, Shri U.N. Tripathi, learned counsel appearing for the petitioner – detenu, has pleaded a large number of grounds numbered from 5 (a) to 5 (g), but, he has restricted his arguments to three grounds namely 5 (d), 5 (f) and 5 (g). 7. We deal with the submission of Shri Tripathi in seriatim. The first submission of Shri Tripathi is that the impugned order of detention which was issued on September 9, 2019 was executed belatedly on November 11, 2019 after a lapse of more than two months (65 days) even though the petitioner – detenu was very well present in the locality. He would submit that the delay in execution of the order of detention throws doubt as regards the satisfaction of the Detaining Authority. He would further submit that the Detaining Authority and the Sponsoring Authority had not taken prompt steps as required under Section 7 of the MPDA Act. The authorities have not moved the competent Court for cancellation of bail as per the requirement of Section 7 of the MPDA Act. He would thus urge that on the ground of delay in execution of the order of detention, the impugned order stands vitiated. Learned counsel relied upon the decision of the Apex Court in the case of A. Mohammed Farook vs. Jt. Secy. He would thus urge that on the ground of delay in execution of the order of detention, the impugned order stands vitiated. Learned counsel relied upon the decision of the Apex Court in the case of A. Mohammed Farook vs. Jt. Secy. To G.O.I. & others (2000) 2 SCC 360 ) to support his contention that the detention order must stand vitiated by reason of non execution thereof within a reasonable time. 8. Learned APP for the respondents on the other hand would invite our attention to the affidavit-in-reply fled on behalf of the respondent No.1 and also on behalf of the State Government. He invited our attention to the steps taken by the executing agency to serve the detention order and would submit that having regard to the explanation furnished, it cannot be said that there is a delay in executing the detention order on the petitioner – detenu. He would submit that officials of respondent No.1 were making constant efforts to trace the whereabouts of the petitioner – detenu on his address available in the records and also in the nearby areas for executing the order. When it was realised that the petitioner – detenu is absconding, secret information was received that the petitioner – detenu was located in Delhi from where he was nabbed. Learned APP would rely upon the decision of this Court in the case of Pyarelal @ Pyare Ambika Singh vs. M.N. Singh & ors. (2002 ALL MR (Cri) 499) to support his contention that in the present fact situation, failure simplicitor to resort to the provisions of Section 7 (2) (a) would not vitiate a detention order on the vice of delay in its execution. He also relied upon the decision of the Apex Court in the case of Abdul Salam alias Thiyyan vs. Union of India (AIR 1990 Supreme Court page 1446) in support of his contention that the delay by itself could not invalidate the detention if the same is reasonably explained. 9. In our opinion, it is not possible for us to accept the submission of learned counsel for the petitioner - detenu that the impugned order of detention stands vitiated on account of delay in execution of the detention order. No doubt, the order of detention came to be passed on September 9, 2019 and it was only on November 13, 2019 that the same came to be executed. No doubt, the order of detention came to be passed on September 9, 2019 and it was only on November 13, 2019 that the same came to be executed. After the order was passed on September 9, 2019, the officials of respondent No.1 tried to secretly locate the whereabouts of the petitioner - detenu to serve the order of detention and other relevant documents at his residence at Vasant Vihar, Thane which was available in their record. They also tried to find out his whereabouts from nearby areas. In the afdavit it is stated that Station diary entries to that effect were made from time to time. All the steps initiated to trace out the petitioner - detenu failed. It is stated on oath in afdavit-in-reply that constant continuous efforts were made to execute the order. It is stated that the petitioner - detenu was absconding and out of bounds of Thane Police Commissionerate. The police teams were searching for him. After the information was received that the petitioner - detenu is in Delhi, the police staff of the Kopari Police Station under the Commissionerate of respondent No.1 with the help of Delhi Police located him on November 11, 2019. The petitioner - detenu was thereafter brought in Maharashtra and on November 12, 2019 was handed over to Chitalsar Police Station, Thane. The impugned order along with the grounds was executed on the same day. 10. Thus, the record reveals that all efforts were made to trace the petitioner - detenu for executing the detention order. The petitioner - detenu had absconded. Upon receiving information that the petitioner - detenu was located in Delhi by Delhi Police, he was brought to Maharashtra and immediately the detention order was executed. 11. The petitioner - detenu has not fled any rejoinder controverting the stand of the respondent No.1. Even from the averments made we find that the delay of 65 days in executing the order of detention has been satisfactorily explained and the response fled by respondent No. 1 before us reasonably spells out the steps taken by the executing agency to serve the detention order. 12. That the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated is well settled by the Apex Court. 12. That the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated is well settled by the Apex Court. The decision of the Apex Court in A. Mohammed Farook (supra) relied upon by learned counsel for the petitioner - detenu has no application in the facts of the present case. In A. Mohammed Farook Their Lordships were of the opinion that the detention order must stand vitiated by the reason of non execution thereof within a reasonable time as there was no report from the executing agency fled to indicate as to what steps were taken by the executing agency to serve the detention order. However, in the present case, the respondent No.1 having satisfactorily explained the delay in executing the detention order, the delay will not vitiate the subjective satisfaction of the Detaining Authority. 13. We are also not impressed by the submission of Shri Tripathi, learned counsel for the petitioner - detenu that the impugned order is vitiated on account of failure of the Detaining Authority to resort to the provisions of Section 7 of the MPDA Act. This Court had an occasion to consider the question whether failure simplicitor to resort to the provisions of Section 7 would vitiate the detention order on the vice of its delay in execution. We are in respectful agreement with the opinion expressed in Pyarelal @ Pyare Ambika Singh (supra). As held by Their Lordships, a perusal of the provisions of Section 7 (2) (a) would show that the Detaining Authority can invoke it if he has reason to believe that a person against whom a detention order is issued is avoiding its execution either by absconding or concealing himself. The Detaining Authority would normally have a reason to believe in the aforesaid terms if despite a reasonable time the detention order cannot be executed. Further, this Court in Pyarelal @ Pyare Ambika Singh has already said that it should be remembered that the provisions contained in Section 7(2)(a) of the MPDA Act are only one of the modes of executing a detention order and the failure to resort to them simplicitor would not vitiate a detention order on the vice of delay in its execution. It is further observed that the Detaining Authority will normally take recourse to them provided he has reason to believe that the person against whom the detention order is issued is absconding or concealing himself to frustrate its execution. 14. In the instant case, the detention order was executed on the petitioner - detenu within two months and three days. The Sponsoring Authority tried to execute the detention order on the petitioner - detenu on his address which was available with them. The Sponsoring Authority repeatedly tried to trace the petitioner - detenu on the address which was available with them and in nearby areas. Pursuant to the secret information received, the petitioner - detenu was nabbed from Delhi. Thus, the petitioner - detenu was absconding and in the fact situation of the present case the Detaining Authority cannot be faulted for not taking recourse to the provisions contained in Section 7 (2)(a) of MPDA Act. 15. It therefore cannot be said that in these facts, failure simplicitor to resort to the provisions of Section 7 would vitiate the order of detention. Even though the petitioner – detenu had absconded, efforts were still being made to locate him. The officials of the respondent No.1 succeeded to nab the petitioner – detenu from Delhi. It was open for the respondent No.1 to take recourse to Section 7 (2) (a) when the respondent No.1 had reason to believe that the petitioner – detenu is absconding or concealing himself to frustrate its execution. However, merely because the petitioner – detenu has absconded, does not mandate the Detaining Authority to immediately take recourse to Section 7 (2) (a) of the MPDA Act. Here is not a case where even after the petitioner – detenu absconded, the officials of the respondent No.1 did not take any steps to trace the whereabouts of the petitioner – detenu or give up their search. The respondent No.1 not only continued with its efforts to locate the petitioner – detenu but also nabbed him in Delhi. The delay has been satisfactorily explained. For the aforesaid reasons, failure to take action under Section 7 (2) (a) of the MPDA Act could not be fatal in the instant case. The respondent No.1 not only continued with its efforts to locate the petitioner – detenu but also nabbed him in Delhi. The delay has been satisfactorily explained. For the aforesaid reasons, failure to take action under Section 7 (2) (a) of the MPDA Act could not be fatal in the instant case. Section 7 (2) (a), in our opinion cannot be read to mean that no sooner the person concerned has absconded, the only option for the Detaining Authority is to take recourse to Section 7 (2) (a). The purpose of Section 7 (2) (a) is to empower the Detaining Authority with additional statutory recourse to aid the execution of the detention order. The effect of not taking recourse to Section 7 on the validity of the detention order will depend on the individual facts of each case. 16. We now consider Shri Tripathi's submission that failure of the Sponsoring Authority to apply for cancellation of bail of the petitioner - detenu makes it manifest that the subjective satisfaction of the Detaining Authority to detain the petitioner - detenu under the impugned order was not genuine and his offers were not serious in executing the detention order. Shri Tripathi placed reliance on the decision of the Apex Court rendered in the case of P.M. Hari Kumar vs. Union of India (AIR 1996 Supreme Court page 70). Their Lordships have said that moving an application for the cancellation of bail makes it manifest that the authorities are serious in executing a detention order. However, in our view, in the instant case, the Detaining Authority has in his return given very cogent reasons which we have already discussed hereinbefore about the continuous efforts made by them to trace the petitioner – detenu. We have no hesitation in concluding that the Detaining Authority and the Sponsoring Authority were serious in their endeavour to execute the detention order and the subjective satisfaction of the respondent No.1 to detain the petitioner – detenu under Section 3 (1) of the MPDA Act cannot be vitiated on this ground. 17. The observations made by us earlier in the context of Section 7 (2) (a) of the MPDA Act will equally apply to this submission of Shri Tripathi. 17. The observations made by us earlier in the context of Section 7 (2) (a) of the MPDA Act will equally apply to this submission of Shri Tripathi. Hence we hold that failure on the part of the respondent No.1 to apply for cancellation of bail by itself will not vitiate the detention order as the Detaining Authority has satisfactorily explained the steps taken to execute the order and reasonably explained the delay of its execution. In this context we draw support from the decision of the Hon’ble Supreme Court in the case of Sk. Serajul vs. State of West Bengal (AIR 1975 Supreme Court page 1517). In paragraph 2 Their Lordships said thus:- “We must not be understood to mean that whenever there is delay in making an order of detention or in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine.” (Emphasis supplied) We may also refer to the decision of the Apex Court in the case of Abdul Salam alias Thiyyan (supra). The relevant portion in paragraph 15 Their Lordships held thus:- “..... It can therefore be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on is own facts and circumstances. The Court has to see whether the delay is explained reasonably....” 18. For the aforesaid reasons, we are satisfied that the Detaining Authority has plausibly explained the delay in execution of the detention order. 19. The next ground urged by Shri Tripathi is ground 5(d) to contend that the right of the petitioner – detenu to make an effective representation guaranteed under Article 22 (5) of the Constitution of India is violated as the Detaining Authority has not supplied Marathi translation of page Nos. 189 to 195 of the compilation which is in English language. In this submission non furnishing of the grounds in a language understood by the petitioner – detenu amounts to non-communication of grounds of detention rendering the detention order illegal and bad in law. 189 to 195 of the compilation which is in English language. In this submission non furnishing of the grounds in a language understood by the petitioner – detenu amounts to non-communication of grounds of detention rendering the detention order illegal and bad in law. 20. Learned APP invited our attention to the return where it is stated by the respondent No.1 that page Nos. 189 to 195 are letters in English addressed by Cyber Cell to Chief Technical Officer, Google and Facebook. It is further stated that after inquiry Kopari Police registered C.R.No.I-73/2019 under Section 66 (d) of the Information Technology Act against the petitioner – detenu and that the letters are part of the investigation hence not translated in Marathi. The affidavit-in-reply further reveals that the petitioner – detenu has studied upto 12th standard, therefore he can read, write and understand English language. The petitioner – detenu is active on social media and he is an active user of Facebook, You-Tube, TikTok, Instagram. An offence has been registered in C.R.No. I-73/2019 also under Section 66 (d) of the Information Technology Act apart from IPC offences. The petitioner – detenu has used English language while on social media. The petitioner – detenu has not controverted these averments of the respondent No.1. In these circumstances, we are persuaded to accept the submission of learned APP that the petitioner – detenu’s rights guaranteed under Article 22(5) of the Constitution of India are not affected. We do not find any merit in the submission of Shri Tripathi that non furnishing of translation of page Nos. 189 to 195 in Marathi language would vitiate the detention order. 21. The last submission urged by Shri Tripathi is as regards not supplying DVR hard disk containing CCTV footage of the spot on June 24, 2019 seized through Shri Kishor Thakre, I.T. Engineer in presence of two panchas. Learned counsel Shri Tripathi submitted that the said material was not produced before the Detaining Authority nor any such material is supplied to the petitioner – detenu. He would submit that non placement of such vital material before the detaining authority vitiates its subjective satisfaction. He would urge that as these materials were not furnished to the petitioner – detenu along with grounds of detention, he has been deprived of his right to make an effective representation which renders the detention order illegal and bad in law. He would submit that non placement of such vital material before the detaining authority vitiates its subjective satisfaction. He would urge that as these materials were not furnished to the petitioner – detenu along with grounds of detention, he has been deprived of his right to make an effective representation which renders the detention order illegal and bad in law. In the return fled by the respondent No.1 it is submitted that DVR hard disk containing CCTV footage of the spot are matters of investigation of C.R.No. I-129/2019. The respondent No.1 has denied the contention of the petitioner – detenu that the DVR hard disk and the other materials were not produced before the Detaining Authority. In any case it is submitted by learned APP that in respect of C.R.No.I-129-2019 the detention order clearly records the version of the complainant and the factum of recording of statements of 11 witnesses corroborating the complainant’s version about the petitioner - detenu creating terror in the area. In such a situation, when the matter was under investigation, non supply of DVR hard disk containing CCTV footage of the spot which was seized through Shri Kishor Thakre, I.T. Engineer in presence of two panchas will cause no prejudice to the petitioner – detenu. In our opinion, the detention order is not vitiated on this ground. 22. For the aforesaid reasons, we do not fnd any merit in the grounds 5(d), 5(f) and 5 (g) of the Petition. Ground 5(g) is pressed only to the extent it relates to non supply of DVR hard disk containing CCTV footage of the spot. No other ground was pressed before us by Shri Tripathi, learned counsel for the petitioner – detenu. In the result, we dismiss this Writ Petition. 23. This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.