Bombay High Court
Makrand Ashok Ghagre vs The State Of Maharashtra on 24 July, 2013
Author: G.S. Patel
Bench: A.S. Oka, G.S. Patel
CRIWP1844-2057-13-F
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1844 OF 2013
Makrand Ashok Ghagre,
Indian Inhabitant, Age 42 years,
residing at Dhanlaxmi Chawls,
Room No. 7, Plot No.101, Sector 16,
Near Gurudwara, Kaper Khairne,
Navi Mumbai 400 709
ig ...Petitioner
versus
1. The State of Maharashtra,
through the Additional Chief
Secretary to the Government of
Maharashtra, Home
Department (Special),
Mantralaya, Mumbai 400 032
2. Medha Gadgil,
The Principal Secretary to the
Government of Maharashtra,
Mantralaya, Mumbai 400 032
3. The Commissioner of
Customs (Prev), M.& P. Wing,
2nd Floor, Everest House, 100,
Marine Lines, Mumbai 400 032
4. The Superintendent of Prison,
Nasik Road Central Prison,
Nasik Road, Maharashtra ...Respondents
AND
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CRIWP1844-2057-13-F
CRIMINAL WRIT PETITION NO. 2057 OF 2013
Mantu Ashrafi Gupta,
Indian Inhabitant, Age 40 years,
residing at House No. 213,
Bargadasaif, Post Pachpadwa, Tehsil
Tulsipura, Dist: Balrampur, Uttar
Pradesh ...Petitioner
versus
1.
The State of Maharashtra,
through the Additional Chief
Secretary to the Government of
Maharashtra, Home
Department (Special),
Mantralaya, Mumbai 400 032
2. Medha Gadgil,
The Principal Secretary to the
Government of Maharashtra,
Mantralaya, Mumbai 400 032
3. The Commissioner of
Customs (Prev), M.& P. Wing,
2nd Floor, Everest House, 100,
Marine Lines, Mumbai 400 032
4. The Superintendent of Prison,
Nasik Road Central Prison,
Nasik Road, Maharashtra ...Respondents
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CRIWP1844-2057-13-F
________
Mrs. Aisha Zubair Ansari for the Petitioners in both Petitions.
Mrs. A.S. Pai, APP, for the Respondent State in both Petitions.
________
CORAM: A.S. Oka &
G.S. Patel, JJ.
DATE: 24th July 2013
JUDGMENT :(Per G.S. Patel, J.)
1. These Habeas Corpus Writ Petitions challenge the 2nd Respondent's detention orders dated 21st February 2013.
Criminal Writ Petition No.1844 of 2013 is brought by a friend of the detenu, Narendra Bhange ("Bhange"), and Criminal Writ Petition No.2057 of 2013 is filed by the brother of the detenu in that Petition, Prabhudayal Gupta ("Gupta").
2. Arising from a common set of facts, the 2nd Respondent issued five detention orders on 21st February 2013. All five are under challenge in separate writ petitions. On 28th June 2013, we decided two of these, Writ Petitions Nos.1288 of 2013 and 1289 of 2013, holding that the detention orders under challenge in those Writ Petitions could not be sustained. The detention orders in the present Writ Petitions are also issued under Sn.3(1) of the of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ("COFEPOSA"), in relation to alleged smuggling of red 3 of 11 ::: Downloaded on - 27/08/2013 21:10:24 ::: CRIWP1844-2057-13-F sanders/sandalwood out of the Jawaharlal Nehru Port at Nhava Sheva.1 Bhange is said to be a real estate broker who was a friend of the Sukhdev Gorde, the detenu in Writ Petition 1288 of 2013. Gupta is said to be a driver of trailer trucks used to transport the contraband. Both detenus are accused of conspiring with Gorde and other detenus in smuggling red sanders out of the country.
3. We have heard Mrs.Ansari and Mrs.Pai, Learned Advocates for the Petitioners and Respondents respectively, at some length, and have carefully considered the contentions raised in the Petition and the Affidavits in Reply. We have also examined the official files in respect of both detention orders, made available to us by Mrs.Pai.
4. Mrs.Ansari's submissions are substantially the same as those raised in the previous two Writ Petitions decided on 28th June 2013, namely:--
(a) There is an inordinate and insufficiently explained delay in the issuance and execution of the detention orders under challenge;
(b) There is an unacceptable level of uncertainty as to the documents on the basis of which the 2nd Respondent claims to have arrived at her subjective 1 Order No.PSA 1212/CR-77/SPL-3(A) dated 21st February 2013 in Writ Petition 1844 of 2013; Order No.PSA 1212/CR-77(4)/SPL-3(A) dated 21st February 2013 in Writ Petition 2057 of 2013.
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application of mind by the Detaining Authority and this is sufficient to invalidate both detention orders.
(c) The Detaining Authority has relied on the show-
cause notices issued by the Customs Authorities, but has not taken into account the detenus' Advocate's reply to those show-cause notices.
5. On the issue of delay, these Writ Petitions are on the same footing as those decided earlier. Here, too, there is a delay of about nine months from the time the detenus were granted bail on 2nd May 2012 to the date when the detention orders under challenge were issued. Here, too, there seems to have been no endeavour by any authority to apply for cancellation of either detenu's bail. The impugned detention orders are, according to Mrs. Ansari, stale, too far removed in time and have the effect of "snaping the live link". In response, Mrs.Pai claims that, between them, the Affidavits in Reply of the Sponsoring Authority (the 3rd Respondent), and the Detaining Authority (the 2nd Respondent) sufficiently explain this delay. Having read both Affidavits in Reply, we must disagree with Mrs.Pai. There is a delay of about five months in moving the proposal. Paragraph 4 of the Sponsoring Authority's Affidavit in Reply attempts to explain this delay. It contains a recitation of the dates on which the detenus in the present case and other detenus were questioned and their statements recorded, the dates on which Screening Committee met, and the dates when 5 of 11 ::: Downloaded on - 27/08/2013 21:10:24 ::: CRIWP1844-2057-13-F the detention proposals were approved. These dates range from May 2012 to late October 2012, and there is no explanation at all why there should have been so long a delay, especially when there is no suggestion that any of the detenus or other persons whose statements were recorded were unavailable or absconding. Between October 2012, when the proposal was placed before the Detaining Authority, and 21st February 2013, when the detention orders were issued, the Detaining Authority called for additional documents and materials and while it is true that some of these were sent to her promptly, there remains yet further delay. The Detaining Authority's explanation is only that the Nagpur Assembly Session was from 10th December 2012 to 21st December 2012; that she was on leave from 17th December 2012 to 29th December 2012; that she resumed work on 31st December 2012; and that between 24th October 2012 and 19th February 2013, there were some 28 days of holidays. This is, in our view, hardly a sufficient explanation. The law on this seems to us to be clear: absent a satisfactory explanation, and where the delay is inordinate, a detention order cannot be sustained.2 In our decision of 28th June 2013 in Writ Petitions 1288 of 2013 and 1289 of 2013 we held that there must be a "a temporal proximity between the Sponsoring Authority's proposal, the formulation of grounds by the Detaining Authority based on his or her subjective satisfaction, and the service of that detention order"; and that "expedition, despatch, urgency and the apprehension of imminent danger on the part of the authorities are clearly the 2 Hemlata Kantilal Shah v State of Maharashtra, AIR 1982 SC 8; Saeed Zakir Hussain Malik v State of Maharashtra, (2012) 8 SCC 233; A. Mohammed Farook v Government of India, (2000) 2 SCC 360.
6 of 11 ::: Downloaded on - 27/08/2013 21:10:24 ::: CRIWP1844-2057-13-F sine-qua-non of preventive detention. If a person is to be deprived of his liberty for an anticipated crime, then action must be taken swiftly, not in a leisurely manner."3 We see no reason to depart from the view we have already taken.
6. Even assuming that Mrs.Pai is right in contending that the delay has been adequately explained, Mrs.Ansari's second argument, on the question of non-application of mind to the documents and materials, remains. The record indicates that after the proposal was received on 22nd October 2012, the 2nd Respondent called for additional information and further generated documents. There are, in the file shown to us, two tabulations: one of documents missing or improperly stamped, and the second of illegible documents. On this, the 2nd Respondent's Affidavit in Reply runs thus:
"4. ... On 31.12.2012, I joined office. After scrutiny of relied upon documents, some papers found missing and not properly stamped. I directed for compliance on telephone. Until 28.01.2013 no compliance was done by Sponsoring Authority.
On 01.02.2013, I as Detaining Authority directed Investigation Officer for compliance. As per my directions compliance was done by Sponsoring Authority in the first week of February and order issued on 21.02.2013." (emphasis supplied) 3 Paras 12 and 13 of the Judgement and Order dated 28th June 2013 in Writ Petition No. 1288 of 2013 (Smt Manisha Sukhdev Gorde v State of Maharashtra & Ors) and 1289 of 2013 (Sher Khan v State of Maharashtra & Ors)
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7. This suggests that the documents requested -- those missing, those unstamped and those illegible -- were all received by the 2nd Respondent in the first week of February 2013 and that she had sufficient time to examine all of these. Along with the detention order, the detenus were served with a list of documents relied on by the Detaining Authority, in two parts, Annexure-I and Annexure-II. The second of these, Annexure-II, is very surprising. It lists the illegible documents, some 11 in number, and says that this is an accompaniment to the Detaining Authority's covering letter of 21st February 2013 by which the grounds of detention were communicated to the detenu. We cannot fathom how the Detaining Authority could ever have relied on documents that are, on her own showing, illegible, let alone applied her mind to these. The statement in the 2nd Respondent's Affidavit, extracted above, to the effect that "compliance was done in the first week of February 2013"
therefore appears to be manifestly incorrect. The illegible documents were never replaced with legible copies. When we examined the file produced by Mrs. Pai, too, we found that only there was compliance only with the 2nd Respondent's requisition in respect of unstamped and missing documents; there is no noting anywhere of the illegible documents being replaced with legible copies. We note that this position obtains in all four Writ Petitions, including the two we decided earlier on 28th June 2013. In those Petitions, however, the portion of the Affidavits in Reply extracted above is not to be found; there is no unequivocal statement in the Affidavits in Reply in the previous two Writ Petitions that compliance was done. This attempted improvement in the present Writ Petitions is, in our
8 of 11 ::: Downloaded on - 27/08/2013 21:10:24 ::: CRIWP1844-2057-13-F view, futile. If anything, it makes matters worse, for there is now a categorical assertion that the Sponsoring Authority complied with 2nd Respondent's requisitions in the first week of February 2013, a statement that is inaccurate. The Detaining Authority's apparent reliance on illegible documents is a clear demonstration of her non-application of mind to the documents and materials.
8. The third argument advanced by Mrs. Ansari is also common to the previous two Writ Petitions decided on 28th June 2013. Here again, show-causes notices were issued to the detenus by the Commissioner of Customs (Export). The detenus' Advocate replied on 22nd October 2012 (a common reply on behalf of all five detenus). There is a complete elision of this reply in the list of documents relied on. Indeed, it is on the date of the reply that the proposal was received by 2nd Respondent. The reply was never placed before the 2nd Respondent at any time. The only explanation for this is that the reply was sent to the wrong department or authority. This seems to us, prima-facie, to be incorrect, in that the reply was sent to the very authority who issued the show-cause notice. In any event, this is entirely irrelevant, since the Sponsoring Authority and the Adjudicating Authority are from the same agency. There is no reason why the reply could not have been placed before the 2nd Respondent, given that she had not only called for additional material and documents, but there was also an interval of several months between the time of submission or receipt of the proposals and the date when the orders of detention were issued.
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9. Where the record discloses a non-application of mind, as it does in these cases, detention orders cannot be sustained. 4 The issues of the 2nd Respondent claiming to have relied on illegible documents and of not having even considered the detenus' Advocate's reply to the show-cause notice are both pertinent and proximate matters that the 2nd Respondent was bound to have considered.5 She was required to apply her mind not only when she approved the detention proposal but also while preparing the detention order and grounds of detention. 6 All these requirements are missing. Impermissible automatism is writ large on the face of the detention orders. On all three submissions raised by Mrs. Ansari, we find for the Petitioners.
10. Quashing and setting aside both detention orders, we therefore make rule absolute in both Petitions, in terms of prayer clause (a) of each. The respective prayer clauses read thus:
In Writ Petition No.1844 of 2013:
(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 the said order of detention bearing No.PSA-
1212/CR-77/SPL-3(A) dated 21.2.2013 and be pleased to direct that the detenu Narendra Bhange 4 Jai Singh v State of J&K, (1985) 1 SCC 561 5 Prakash Mehta v/s. Commissioner and Secretary, Government of Kerala and others, AIR 1986 SC 687 6 Rajesh Vashdev Adnani v State of Maharashtra, (2005) 8 SCC 390 10 of 11 ::: Downloaded on - 27/08/2013 21:10:24 ::: CRIWP1844-2057-13-F be set at liberty.
In Writ Petition No. 2057 of 2013:
(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 the said order of detention bearing No.PSA-
1212/CR-77(1)/SPL-4(A) dated 21.2.2013 and be pleased to direct that the detenu Prabhudayal Gupta be set at liberty.
No order as to costs.
11.
(G.S. Patel, J.) (A.S.Oka, J.)
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