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2023 DIGILAW 1471 (BOM)

Mukesh Prakash Bhalerao v. District Magistrate

2023-07-10

GAURI GODSE, REVATI MOHITE DERE

body2023
JUDGMENT/ORDER GAURI GODSE, J. - This petition is filed to challenge the order dtd. 23/1/2023 passed by respondent no. 1-District Magistrate, Jalgaon, in the exercise of powers under sub-sec. (2) of Sec. 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 ('MPDA' Act). 2. The detaining authority in the said order of detention has referred to the list of offences registered at various police stations of Bhusawal Taluka of Jalgaon district against the petitioner. The detaining authority has also referred to orders of taking preventive action by Bhusawal police station, district Jalgaon against the petitioner as well as has referred to details of externment proceedings initiated by Bhusawal police station, district Jalgaon against the petitioner. Thus, by referring to cases registered against the petitioner and his associates, the detaining authority has recorded that the petitioner and his associates carry dangerous weapons, thereby creating terror and fear in the minds of the public and committing various offences as mentioned in the sequence described in Chapters XVI and XVII of the Indian Penal Code, 1860. The detaining authority has, in detail referred to allegations against the petitioner in various cases registered against the petitioner, a list of which is mentioned in the detention order. The detaining authority has further reproduced the gist of in-camera statements of two witnesses and has held that considering the criminal activities of the petitioner, he falls within the definition of a dangerous person as defined in the said MPDA Act. Thus, by referring to various cases registered against the petitioner and the gist of the in-camera statement of two witnesses, the detaining authority has passed the order of detention against the petitioner. 3. The petition raises various grounds to challenge the order of detention; however, the learned counsel for the petitioner has pressed into service the ground raised in clause (c) of paragraph 5 of the petition, which reads as under: "(c) The petitioner says and submits that the Detaining Authority has not complied with the requirement of law strictly in as much as no report is sent promptly and expeditiously to the Statement Government "forthwith" as required by Sec. 3(3) of the MPDA Act. The Hon'ble Apex Court while interpreting the very word "forthwith" as immediately, without any loss of time and with sense of urgency. The Hon'ble Apex Court while interpreting the very word "forthwith" as immediately, without any loss of time and with sense of urgency. This has been followed by Bombay High Court in a number of judicial pronouncements. The authorities are called upon to explain the said delay, if any to the satisfaction of this Hon'ble Court with regard to the approval of the detention by the State Government under Sec. 3(3) of MPDA Act, as per the requirement of law. It is therefore the order of detention is illegal and bad in law liable to be quashed and set aside." 4. Learned counsel for the petitioner submitted that though the detention order is passed on 23/1/2023, same was not sent to the State Government immediately as required under sub-sec. (3) of Sec. 3 of the said MPDA Act. Learned counsel submitted that the requirement of law mandates that the detaining authority has to promptly and expeditiously send the order of detention to the State Government as required under sub-sec. (3) of Sec. 3 of the MPDA Act. The learned counsel, by referring to the affidavit filed on behalf of detaining authority, submitted that there is no explanation given with respect to the delay in submitting the order to the State Government. 5. In support of the submissions, the learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Hetchin Haokip Vs. State of Manipur and others,(2018) 9 Supreme Court Cases 562. She has also relied upon the decision of this Court in the case of Dharani Raja Padyachi Vs. The State of Maharashtra and others,2019 ALL MR (Cri) 3504. Learned counsel for the petitioner thus submitted that the order of detention was issued by detaining authority on 23/1/2023, and the report of the same was sent to the State Government by hand delivery on 30/1/2023. Learned counsel thus submitted that unexplained delay in submitting the report before the State Government has vitiated the order of detention and, thus, is liable to be quashed and set aside, and the petitioner is required to be released forthwith. 6. Learned APP has relied upon the affidavit dtd. 16/6/2023 filed by Mr. Aman Mittal, District Magistrate, Jalgaon, who is the detaining authority. The learned APP submitted that there was no delay in submitting the report of the detention order before the State Government. 6. Learned APP has relied upon the affidavit dtd. 16/6/2023 filed by Mr. Aman Mittal, District Magistrate, Jalgaon, who is the detaining authority. The learned APP submitted that there was no delay in submitting the report of the detention order before the State Government. She thus submitted that there is no merit in the ground raised by the petitioner, and hence, the order of detention be confirmed. Learned APP also relied upon the affidavit dated 15 thJune 2023 of Mr. Anil Eknath Kulkarni, Joint Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, on behalf of respondent no. 2-State of Maharashtra and submitted that the report of the order of detention was received from the detaining authority on 30/1/2023, and the same was approved by the Government on 3/2/2023. She submitted that the actual date of detention of the petitioner is 24/1/2023. Learned APP further referred to dates of reference under Sec. 10 of the said MPDA Act made to the Advisory Board and receipt of the report of the Advisory Board. She thus submitted that the detention order was confirmed after the due procedure on 23/3/2023. 7. We have considered the submissions made by both parties. It is not in dispute that the report of the detention order passed on 23/1/2023 was submitted before the State Government only on 30/1/2023. The affidavit filed on behalf of the detaining authority does not explain the delay of 8 days in submitting the report before the State Government. A perusal of the affidavit filed on behalf of the detaining authority shows that there is absolutely no explanation with respect to the said delay. 8. The Hon'ble Supreme Court, in the case of Hetchin Haokip in paragraphs 14 and 15, has held that the expression 'forthwith' under Sec. 3(4) of the National Security Act 1980 must be interpreted to mean within a reasonable time and without any undue delay. The Hon'ble Supreme Court has held that any delay between the date of detention and the date of submitting the report to the State Government must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity. In the said case of Hetchin Haokip, there was a delay of 5 days in submitting the report from the date of the order of detention. In the said case of Hetchin Haokip, there was a delay of 5 days in submitting the report from the date of the order of detention. The Hon'ble Supreme Court, in the said case has set aside the order of detention by holding in paragraphs 14, 15 and 16 as under: "14. The High Court is not correct in holding that as long as the report to the State Government is furnished within twelve days of detention, it will not prejudice the detenu. It is settled law that a statute providing for preventive detention has to be construed strictly. While "forthwith" may be interpreted to mean within reasonable time and without undue delay, it certainly should not be laid down as a principle of law that as long as the report to the State Government is furnished within 12 days of detention, it will not prejudice the detenu. Under Sec. 3(4), the State Government is required to give its approval to an order of detention within twelve, or as the case may be, fifteen days. 15. The expression "forthwith" Under Sec. 3(4), must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity. 16. In the present case, the District Magistrate submitted the report to the State Government on the fifth day (17/7/2017), after the date of the detention order (12/7/2017). The reason for the delay of five days is neither mentioned in the State Government's order confirming the detention order, nor in the impugned judgment. It was for the District Magistrate to establish that he had valid and justifiable reasons for submitting the report five days after passing the order of detention. As the decision in Joglekar[Keshav Nilkanth Joglekar v.Commr. of Police, 1956 SCR 653 : AIR 1957 SC 28 : 1957 Cri LJ 10] holds, the issue is whether the report was sent at the earliest time possible or whether the delay in sending the report could have been avoided. As the decision in Joglekar[Keshav Nilkanth Joglekar v.Commr. of Police, 1956 SCR 653 : AIR 1957 SC 28 : 1957 Cri LJ 10] holds, the issue is whether the report was sent at the earliest time possible or whether the delay in sending the report could have been avoided. Moreover, as the decision in Sk. Salim v. State Of West Bengal ., (1975) 1 SCC 653 : 1975 SCC (Cri)290] holds, there should be no laxity in reporting the detention to the Government. Whether there were administrative exigencies which justify the delay in sending the reports must be explained by the detaining authority. In the present case, as we shall explain, this was a matter specifically placed in issue before the High Court. The District Magistrate offered no explanation. This would vitiate the order of detention. 9. The provision of Ss. 3 and 8 of the MPDA Act is pari materia with the provisions of Ss. 3 and 8 of the National Security Act 1980, which is interpreted by the Hon'ble Supreme Court in the case of Hetchin Haokip. Thus the principles of law laid down by the Hon'ble Supreme Court in the case of Hetchin Haokip are squarely applicable to the present case. 10. This Court, in the case of Dharini Padyachi, by relying upon the decision of the Hon'ble Supreme Court in the case of Hetchin Haokip, held that the report as envisaged by sub-sec. 3 of Sec. 3 was not sent in the said case by the detaining authority to the State Government at the earliest, and there was a delay in sending report. Thus, this Court, by relying upon the decision of the Hon'ble Supreme Court in the case of Hetchin Haokip, set aside the order of detention on the ground that there was a delay in submitting the report of the order of detention before the State Government. 11. In the facts of the present case, there is a delay of 8 days in submitting the report under sub-sec. (3) of Sec. 3 of the said MPDA Act from the date of order of detention. The order of detention is dtd. 23/1/2023, and the report is sent on 30/1/2023. The affidavit filed on behalf of the detaining authority is bereft of any explanation regarding the delay in sending the report. (3) of Sec. 3 of the said MPDA Act from the date of order of detention. The order of detention is dtd. 23/1/2023, and the report is sent on 30/1/2023. The affidavit filed on behalf of the detaining authority is bereft of any explanation regarding the delay in sending the report. Thus, the law laid down by the Hon'ble Supreme Court, which mandates sending of the report forthwith, is violated in the present case. Thus, the unexplained undue delay in reporting the order of detention to the State Government is prejudicial to the petitioner as the undue delay in furnishing the grounds of detention to the detenu amounts to the continuation of the detention being illegal and impermissible. 12. Under any law permitting preventive detention, the liberty of an individual is taken away without holding a trial and without recording a finding of guilt. Therefore, apart from the safeguards provided under Article 22 of the Constitution of India, there are safeguards provided under every such statute providing for preventive detention, and therefore normally, provisions in such statutes providing safeguards have to be construed strictly unless the contrary intention appears under the statute. Whenever the statute intends to give a specific time, it provides for the number of days for following that particular safeguard. Therefore, the word "forthwith" needs to be strictly construed. The Detaining Authority exercises delegated powers under Sec. 3 of the MPDA Act; therefore, it is all the more necessary to send the report forthwith along with the grounds of detention to the State Government 13. The law laid down by the Hon'ble Supreme Court in the case of Hetchin Haokip clearly applies to the facts of the present case. The delay in reporting the detention order to the State Government by a period of 8 days is in violation of sub-sec. (3) of Sec. 3 of the said MPDA Act. The absence of any justification in not reporting the order of detention to the State Government forthwith, vitiates the order of detention and renders the detention to be impermissible and illegal. 14. Hence, for the reasons stated above, the writ petition is allowed by passing the following order. O R D E R i. Petition is allowed and rule is made absolute in terms of prayer clause 'b', which reads as under:- "b. The order of Detention bearing No. Dandapra/KAVI/MPDA/39/2023 dtd. 14. Hence, for the reasons stated above, the writ petition is allowed by passing the following order. O R D E R i. Petition is allowed and rule is made absolute in terms of prayer clause 'b', which reads as under:- "b. The order of Detention bearing No. Dandapra/KAVI/MPDA/39/2023 dtd. 23/1/2023 issued under Sec. 3 of M.P.DA. Act, 1981 by the Respondent No. 1-District Magistrate, Jalgaon be quashed and set aside and on quashing the same the Petitioner be ordered for release forthwith;" ii. The detenue is set at liberty forthwith, if not required in any other case. All concerned to act on the authenticated copy of this order.