Bombay High Court
Salman @ Baba S/O Harun Khan (In Jail) vs State Of Mah., Thr. Its Secretary, Home ... on 14 August, 2020
Author: Amit B. Borkar
Bench: A. S. Chandurkar, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 279 OF 2020
Salman @ Baba S/o. Harun Khan,
Aged about 28 years,
R/o. Minimata Nagar, Police Station Kalmana,
Nagpur City, Nagpur. . . . PETITIONER
...V E R S U S..
1. The State of Maharashtra through
its Secretary, Home Department,
Mantralaya, Mumbai-32.
2. Commissioner of Police,
Civil Lines, Nagpur.
3. Superintendent Central Prison,
Nagpur. . . . RESPONDENTS
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Shri R. M. Daga, Advocate for petitioner.
Shri T. A. Mirza, Additional Public Prosecutor for respondents/State.
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CORAM :- A. S. CHANDURKAR AND
AMIT B. BORKAR, JJ.
DATE OF JUDGEMENT :- 14.08.2020
JUDGMENT (PER : AMIT B. BORKAR, J.):-
1. Hearing was conducted through video conferencing and the learned counsel agreed that the audio and video quality was proper. ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 :::
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2. Rule. Rule is made returnable forthwith. Learned Additional Public Prosecutor waives notice on behalf of the respondents. Heard finally by consent of the learned counsel appearing for the parties.
3. The petitioner/detenue Salman @ Baba S/o. Harun Khan has preferred this petition challenging preventive detention order passed against him bearing no. DET/MPDA/Zone-V/PCB/04/2019 on 18.01.2019 by respondent no. 2-Commissioner of Police, Nagpur. The said detention order has been passed under sub-Section (2) of the Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Vedio Pirates, Sand Smugglers and Persons engaged in Black-marketing of Essential Commodities Act, 1981 (Amendment of 2015) (Mah. LV of 1981) (hereinafter referred to as "the MPDA Act"). The said detention order has been issued by respondent no. 2, as according to him the petitioner is a dangerous person as defined under Section 2(b-1) of the MPDA Act, whose activities are pre-judicial to the maintenance of public order. The detention order is based on Crime No. 583/2018 registered with Kalamna Police Station under Sections 307, 326, 143, 147 and 149 of Indian Penal Code read with Sections 4 and 25 of Indian Arms Act. In so far as Crime No. 583/2018 is concerned, the petitioner was granted bail by this Court by order dated 22.11.2018. The said offences were registered on ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 ::: 3 cri-wp-279-20 J..odt 30.08.2018. The detention order is also based on two in-camera statements of witnesses "A" and "B" recorded on 09.12.2018 and 10.12.2018 respectively.
4. Shri R. M. Daga, learned counsel for the petitioner has pleaded number of grounds in the petition but in our judgment, this petition should succeed on solitary ground of inordinate delay in issuance of detention order against the detenue, we are not adverting to the other grounds. These grounds have been pleaded in the petition as ground nos. 13 and 14. Grounds are to the effect that Crime No. 583/2018 was registered on 30.08.2018, whereas the order of detention was passed on 18.1.2019, after a delay of around five months from the last crime and therefore, there is absence of any live link between material considered as pre-judicial to the maintenance of public order by respondent no. 2 and subjective satisfaction reached by respondent no. 2 that activities of the petitioner were indeed as such. The said delay is unexplained.
5. Ground nos. 13 and 14 have been replied by respondent no. 2 by affidavit dated 06.08.2020. The reply to explain delay is in substance the procedural delay to get the approval from various authorities. Though the crime was registered on 30.8.2018, the ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 ::: 4 cri-wp-279-20 J..odt explanation starts with the date of release of the petitioner on bail i.e. from 22.11.2018 and thereafter, the statements of the secret witnesses were recorded on 09.12.2018 and 10.12.2018. The said proposal went through various officers of respondent no. 1 from 11.12.2018 till 05.01.2018. It is stated that on 05.01.2019, the Detaining Authority carefully went through the proposal including in-camera statements and opined that it was a fit case for the Detaining Authority to detain the detenue and forwarded papers to the Police Inspector, Detention Cell, Crime Branch, Nagpur for fair typing and translation of the documents in Hindi and thereafter, the Police Inspector prepared grounds of detention on 18.01.2018.
6. We are conscious of the position of law that delay, ipso-facto in passing the order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What required by the law is delay must be satisfactorily explained by the Detaining Authority.
7. When this Court examines the validity of the order of preventive detention under Article 226 of the Constitution of India, this Court has to examine the decision making process. The order of preventive detention is an order of very drastic nature. The result of ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 ::: 5 cri-wp-279-20 J..odt passing an order of preventive detention is to deprive the detenue of his liberty without trial. Therefore, the order of preventive detention cannot be passed in a causal and light hearted manner. The passing of the order of preventive detention involves careful application of mind and recording of subjective satisfaction on the basis of material on record that grounds of detention provided by statute exist. The recording of such subjective satisfaction by the Detaining Authority in order of preventive detention is a sine-qua-non for passing a valid order of preventive detention. This Court, while deciding the validity of the order of preventive detention cannot decide whether there was adequacy of material before the Detaining Authority. This Court can examine whether there was material before the Detaining Authority and whether the Detaining Authority has recorded the subjective satisfaction that the grounds provided in the statute for passing an order of detention exist.
8. A profitable reference can be made to the judgment of Hon'ble Apex Court in the case of Pradeep Nilkanth Paturkar Vs. S. Ramamurthi and others [1993 SCC (Cri) 392], wherein it is held that the detention order can be quashed on the ground of unexplained delay. In the facts of the said case there was a delay of five months and eight days from the date of registration of the last crime. The facts of the said case are similar to the facts of the present case in as much as the statements of ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 ::: 6 cri-wp-279-20 J..odt the secret witnesses were recorded after detenue was successful in getting bail. The Hon'ble Apex Court while taking note of the said fact has observed thus :-
"What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenue became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March, 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act. "
9. In the facts of the present case, there is no explanation, from date of registration of crime i.e. 30.8.2018 till release of petitioner on bail in the said crime i.e. 22.11.2018. The statements of witnesses "A" and"B" were recorded on 09.12.2018 and 10.12.2018. The Detaining Authority has approved the proposal on 5.1.2019, but order of detention was not issued till 18.1.2019. The detaining authority has, thus, failed to satisfactorily explain delay in passing of detention order. Therefore, the judgment in the case of Pradeep Nilkanth Paturkar (supra) is squarely applicable in the facts and circumstances of the present case.
10. Shri R. M. Daga, learned counsel for the petitioner, in support of his submission that there is delay of five months from the crime and the order of detention, has relied upon the judgment of this Court in the case of Narnedra @ Chotya Mahadev Balkawade Vs. Commissioner of Police, Pune [2020 (2) Mh.L.J. (Cri.) 476], wherein there was delay of fourteen ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 ::: 7 cri-wp-279-20 J..odt days in forwarding the proposal by the Additional Commissioner of Police to the Crime Branch and a delay of nine days in forwarding the proposal of detention to the Commissioner of Police by the Joint Commissioner of Police. In the facts of the said case also the statements of in-camera witnesses were recorded only after the detenue became successful in getting bail orders in crimes alleged against the petitioner therein.
11. For the said reasons, in our view, the impugned detention order is vitiated on the vice of delay in its issuance. On account of said vice the live link between pre-judicial activities of the petitioner/ detenue and rational of clamping a detention order on him has been snapped and the detention order, instead of being preventive, as it should be in law, has become punitive and will have to be struck down. Hence, we pass the following orders:-
ORDER
(i) The impugned order of detention bearing no.
DET/MPDA/Zone-V/PCB/04/2019, dated 18.01.2019 issued under sub- Section (2) of the Section 3 of the MPDA Act by respondent no. 2 is hereby quashed and set aside.
(ii) The petitioner/ detenue Salman @ Baba S/o. Harun Khan be set at liberty forthwith, if not required in any other case. ::: Uploaded on - 14/08/2020 ::: Downloaded on - 15/08/2020 04:49:51 :::
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12. Rule is made absolute in the above terms with no order as to costs.
13. The order be communicated to the counsel appearing for the parties, either on the email address or on WhatsApp or by such other mode, as is permissible in law.
JUDGE JUDGE
RR Jaiswal
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