Bombay High Court
Farzana Salam Nakhawa (Smt.) vs Shri R.H. Mendonca Commissioner Of ... on 30 August, 2000
Equivalent citations: 2001(5)BOMCR144
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. By means of this Habeas Corpus petition, the petitioner, who is wife of detenu, seeks to challenge the order of detention dated 30-09-1999 (Annexure "A") issued under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (MPDA) passed by the Commissioner of Police, Greater Bombay (respondent No. 1) empowered under section 3(2) and for release of detenu forthwith.
2. Though diverse grounds have been set out in the writ petition challenging the aforesaid order of detention, during the course of arguments, Mr. V.N. Tripathi, learned Counsel for the petitioner, pressed the additional ground 6(D) in support of the prayer made in the writ petition.
3. Ground 6(D) which has been pressed by the learned Counsel for the petitioner reads thus :----
"6(D) The petitioner says and submits that the detenu was detained under section 3(1) of MPDA Act, 1981 in pursuance of an order passed on 30-9-1999 by the respondent No. 1. The petitioner says and submits even though the order was passed on 30-9-1999, the said order was executed and served on the detenue belatedly on 4-12-99. The petitioner says and submits that the detenue is a permanent resident of Bombay and was available at Bombay. The petitioner was attending Court during said removed period also. Rozanama will be produced at the time of final hearing. The petitioner submits the sponsoring public executing authority have made no efforts to execute the said order promptly and without any loss of time. The petitioner says and submits this gross delay throw doubt in the genuineness of the subjective satisfaction of the detaining authority. The sponsoring/executing authority are called upon to explain to this Honourable Court. This the efforts made by the sponsoring authority and action taken under section 7 of M.P.D.A Act, and whether any application moved to any higher judicial forum for cancellation of bail. The order of detention is illegal and bad-in-law delay, ought to be quashed and set aside."
4. The nub of the said ground is that there was delay in executing the order of detention which vitiates are subjective satisfaction arrived at by the detaining authority. The basic facts in that connection are not disputed that the order of detention was passed on 30-09-1999 and the detention order was served upon the detenu on 4-12-1999. The petitioner has also averred that the detenu was attending the Court of Metropolitan Magistrate, 15th Court, Mazgaon, Mumbai in Criminal Case No. 99/P/99 in which the detenu is one of the accused persons. Specifically it is the case of the petitioner that the detenu attended the said Court on 5-11-1999 and still the detention order was not served on that date and it was only on 4-12-1999 that the detention order was executed and served upon the detenu.
5. In response to the rule issued by this Court, the respondents have filed initially two affidavits, one of Shri. R.H. Mendonca, the Commissioner of Police (Detaining Authority) and the other by Shri M.B. Khopkar, Desk Officer, Home Department. Thereafter, the affidavit of Shri. M.N. Singh, the present Commissioner of Police has been filed by the respondents. To meet the additional grounds set up by the petitioner vide leave granted by this Court on 26-7-2000 including the ground 6(D) aforequoted, the respondents have filed affidavit of Shri N. B. Sapkale, Assistant Police Inspector, Byculla Police Station, Mumbai. Since the only ground pressed by the learned Counsel for the petitioner is with regard to ground No. 6(D), the affidavit of Shri N.B. Sapkale filed by the respondents is required to be considered by us in that light. In the said affidavit of Shri Sapkale, it is stated that the detention order dated 30-9-1999 was received by Byculla Police Station on 1-10-1999 for serving the same upon the detenu. On that very day, the efforts were made by him along with other police personnel for serving the detention order upon the detenu in Deonar area, Shivaji Nagar area and Govandi area. The detention order could not be served on that day. Thereafter the efforts were made on 2-10-1999, 3-10-1999, 4-10-1999, 7-10-1999, 9-10-1999, 23-10-1999, 5-11-1999, 13-11-1999 and 20-11-1999 at various places where the detenu was likely to be found, but detenu could not be served. On 4-12-1999 one P.S.I. Shirsat and other staff members made efforts to trace the detenu is Borivli area and ultimately on that day, the detenu was served with the detention order and other documents.
6. The question that requires our consideration is whether the delay in serving the detention order has been satisfactorily and sufficiently explained. As we have already noted the detention order was issued on 30-9-1999 and was served upon the detenu on 4-12-99. There is thus delay of about two months and five days in serving the detention order upon the detenu.
7. Be it may noted at the outset that delay in execution of detention order by itself may not affect the subjective satisfaction in the facts and circumstances of a particular case and the detaining authority may give satisfactory and sufficient explanation for not being able to execute the detention order and in that event if the explanation put forward by the detaining authority or the sponsoring authority or the executing agency is found worthy of acceptance, the subjective satisfaction arrived at by the detaining authority may not be vitiated. Whenever there is delay in execution of detention order, it is required of detaining authority to furnish satisfactory explanation for the said delay, otherwise the subjective satisfaction arrived at by the detaining authority for making the detention order may be affected. It need not be emphasized that facts and circumstances of each case where there is delay in execution of detention order and the efforts made and the steps taken by the detaining authority in executing the order of detention and also the explanation given by the detaining authority or the executing agency or the sponsoring authority are required to be seen in a given case to find out, whether delay in executing the detention order has vitiated the subjective satisfaction of the detaining authority in issuing the detention order.
8. In the present case when we turn to the affidavit of Mr. Sapkale, Assistant Police Inspector attached to Byculla Police Station, who was executing agency to serve the detention order upon the detenu, we find that from 1st October, 1999 to 4th October, 1999, the efforts were made each day to trace him to his residential place and the surrounding area as well as some other areas where he was likely to be found out, but the detenu could not be traced. There is no reason to disbelieve the explanation furnished by the executing agency to that effect. Thereafter, again efforts were made on 7-10-1999 and 9-10-1999 to trace the detenu, but the efforts were unsuccessful. However, we find that after 9-10-1999 for almost two weeks, there is no explanation whatsoever why efforts were not made to serve the detention order upon the detenu and it was only on 23-10-1999 that efforts were made to trace the detenu in Shivajinagar area, but could not be traced. After attempts to trace the detenu was unsuccessful on 23-10-99, again for 12 days no steps were taken in executing the detention order and it appears from the affidavit of Mr. Sapkale that on 5-11-1999, the efforts were made to trace the detenu in Govandi area. For this period of 12 days, between 23-10-99 and 5-11-90 also there is no explanation as to why efforts were not made. Then again after a gap of 7 days on 13-11-1999 the efforts are said to have been made by the staff of Byculla Police Station to trace the detenu, but detenu could not be traced. Thereafter on 20-11-1999 it appears that efforts were made to find out the detenu in Govandi area, but he could not be found out. Again for two weeks, no steps were taken and it was only 4-12-1999 that efforts were made to trace the detenu in Borivli area and on that day the detenu could be traced and detention order was served upon him on that date along with the relevant documents. It would be thus seen that intermittently for the period from 10-10-99 to 22-10-99, 6-11-99 to 12-11-99, 14-11-99 to 19-11-99 and 20-11-99 to 3-12-99 no efforts whatsoever were made by the concerned authority in serving the detention order upon the detenu. Moreover, it would be seen that on 5-11-99 the detenu presented himself in the Court of Metropolitan Magistrate (6th Court in charge 17th Court) and still the detention order was not served upon the detenu. In this regard, the explanation given in the affidavit of Mr. Sapkale deserves mention. It is stated that on 5-11-1999 the Presiding Officer of 11th Court had been transferred and no other Presiding Officer was posted in the said Court; the cases of 17th Court were placed before the 6th Court and due to huge crowd, detenu took benefit and slipped away. We find the explanation given in paragraph 14-B of the affidavit of Mr. Sapkale unworthy of acceptance. We say so because even on the earlier date 14-10-1999, the Presiding Officer of 17th Court was on leave and the matters pertaining to 17th Court were dealt with by 6th Court which was in the knowledge of the concerned authority. In the same paragraph, it is stated by the deponent that on 14-10-99 (the immediate preceding date to 5-11-1999) a watch was kept at the Court, but the detenu was absent and, therefore, order of detention could not be served by the concerned agency. When the concerned agency was in know of the fact that the next date of the case in which the detenu was one of the accused was fixed on 5-11-1999 and when the Presiding Officer of 17th Court was on leave and the matters of that Court were being dealt with by 6th Court, appropriate arrangement ought to have been made to serve the detention order upon the detenu on that date and particularly when the detenu in fact appeared before the said Court on 5-11-1999. The explanation given in that connection that Shri Nagre, a Police Constable was posted at Mazgaon Court and he did not notice the detenu in that Court on 5-11-1999 is hardly acceptable. For a detenu who according to the affidavit filed in reply was avoiding service of detention order, since on few days efforts were made to serve which were unsuccessful, the detaining authority or the concerned agency was required to be fully vigilant when it was known to them that the detenu is facing trial in criminal case in the Court of Metropolitan Magistrate and ought to have ensured that on the date he presents in the Court in that case is served with the detention order. In A. Mohammed Farook v. Jt. Secy. To G.D.I. and others, 2000 S.C.C. (Criminal) 411, the Apex Court observed that when detenu was present in the Court of Additional Chief Metropolitan Magistrate on 25-2-99 as well as on 25-3-99 and despite such opportunities, neither the detaining authority nor the executing agency as well as the sponsoring authority were deligent to serve the detention order on the petitioner (Sic Detenue) at the earliest. Delay of 40 days in executing the detention order cannot be said to have been sufficiently explained and accordingly subjective satisfaction of the detaining authority was held to be vitiated.
9. Besides that it would be seen that it was in the know of the concerned authority that detenu who was accused in Criminal Case No. 99/P/99 in the Court of Metropolitan Magistrate and was on bail and remained absent on 14-10-99, steps ought to have taken place for cancellation of his bail.
10. In P.M. Hari Kumar v. Union of India and others, , the Apex Court in paragraph 13 of the report held thus :---
"13. If the respondents were really sincere and anxious to serve the order of detention without any delay it was expected of them, in the fitness of things, to approach the High Court or, at least, the Court which initially granted the bail for its cancellation as, according to their own showing, the petitioner had violated the conditions imposed, and thereby enforce his appearance or production as the case might be. Surprisingly, however, no such steps were taken and instead thereof it is now claimed that a communication was sent to his residence which was returned undelivered. Apart from the fact that no such communication has been produced before us in support of such claim, it has not been stated that any follow-up action was taken till 3-8-90, when section 7 of the Act was invoked. Similarly inexplicable is the respondent's failure to insist upon the personal presence of the petitioner in the criminal case (C.C. No. 2/93) filed at the instance of the Custom Authorities, more so when the carriage of its proceeding was with them and the order of detention was passed at their instance. On the contrary, he was allowed to remain absent, which necessarily raises the inference that the Customs Authorities did not oppose his prayer, much less bring to the notice of the Court about the order of detention passed against the detenu."
11. It is true that in P.M. Hari Kumar, there was delay of about 4 years in serving detention order, but that would not affect the principle laid down by the Apex Court that if the respondents were really sincere and anxious to serve the order of detention without any delay, the minimum expected of them was to apply for cancellation of bail. Whether the bail to the accused has been granted on conditions or not is not material because if the accused remains absent on the date fixed by the Court, he definitely commits breach of the bond for his appearance before the Court. In the present case also, when on 14-10-99 when the detenu remained absent in the criminal case, he obviously committed breach of the bail bond and if the respondents were in fact sincere and anxious in serving the detention order upon the detenu at the earliest, the minimum expected of them was to apply for cancellation of bail before the concerned Criminal Court. It would be pertinent here to refer to the explanation given by the respondents through the affidavit of Mr. Sapkale in that regard. The explanation is that the parameters for cancellation of bail are rather restricted and the process of cancellation of bail is a very protracted and lengthy one. This assumption on the part of the concerned authority negates the anxiousness on the part of the concerned authority in serving the detention order at the earliest. As a matter of fact the explanation that the process of cancellation of bail is protracted and lengthy and, therefore, cancellation of bail was not applied is no explanation at all. The assumption on the part of the concerned authority that applying for cancellation of bail was not to serve an effective purpose was wholly misconceived and only reflects the laxity on the part of the concerned authority and is set up to explain the lapse which otherwise is not explainable. It cannot be overlooked that once a detention order is issued by the detaining authority on his subjective satisfaction that detention of detenu is necessary to prevent prejudicial activities, all purposeful efforts are required to be made to ensure that such detention order is served on the detenu at the earliest without any loss of time. By applying for cancellation of bail immediately after 14-10-1999, when it came to the notice of the concerned authority that accused has not presented himself before the Court on the date of the hearing, the concerned authority could have availed of one of the modes for securing the availability of the accused for service of the detention order and that would have definitely shown earnestness on the part of the concerned authority in serving the detention order on the detenu. The view which we have taken also finds support from the unreported judgment of this Court in Salim Ahmed Shaikh v. R.H. Mendonca and others, Criminal Writ Petition No. 731 of 2000 decided by the Division Bench of this Court on 11th July 2000, after referring to the decision of the Apex Court in P.M. Hari Kumar's case, in para 7 of the said judgment, the Division Bench held thus :---
"7. Considering the above, there is no option for us but to allow this petition because we find that there is long delay which has not been explained properly in this case and the Detaining Authority has not mentioned any reason why the application for cancellation of bail of the detenu was not filed or why action under section 7(1) or section 7(2)(a) of the M.P.D.A. Act or under the provisions of the Criminal Procedure Code was not taken."
12. The learned Public Prosecutor however invited our attention to the judgment of this Court in Safruddin Abdul Majid Khan v. R.H. Mendonca & others, Criminal Writ Petition No. 1604 of 1999 decided on 24-4-2000 wherein Division Bench appears to have taken the view that merely because application for cancellation of bail which is one of the modes to execute the detention order was not made, it cannot be said that the detaining authority and sponsoring authority were not sincere to execute the detention order. Upon perusal of the said judgment of Safruddin Abdul Majid Khan, we find that the Division Bench did not consider the judgment of the Apex Court in P.M. Hari Kumar's case. Besides that we find that the Division Bench was satisfied that the detenu in that case was repeatedly searched at his residence address and other places where he was likely to be found and, therefore, by not taking recourse for making application for cancellation of bail and invocation of section 7(1) and 7(2)(a) of M.P.D.A. Act, the Court found in the facts and circumstances of that case that delay in executing the detention order was satisfactorily explained.
13. It may also be observed by us that the power given to the authorities concerned under section 7 of M.P.D.A. Act was also not invoked within reasonable time. In paragraph 14 of the affidavit in reply of Mr. Sapkale, it is stated that detenu was residing in rented one room tenement in Shivajinagar, Govandi area; the detenu had no valuable property in his name and therefore it was felt that it would not serve any purpose to take any steps under section 7. We are afraid the explanation so furnished in paragraph 14 at best may explain non-invocation of section 7(1) of M.P.D.A. Act, but the said explanation is no explanation for non-invocation of the power given under section 7(2)(a). Section 7(2)(a) reads thus :-
"7(2)(a). Notwithstanding anything contained in sub-section (1), if the State Government or an officer mentioned in sub-section (2) of section 3 has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the State Government or the Officer, as the case may be, may, by order notified in the Official Gazette, direct the said person to appear before such officer, at such place and within such period as may be specified in the order."
In the facts of the present case where immediately after passing of the detention order, said order could not be served upon the detenu since he was not traceable and particularly when he remained absent before the Criminal Court on 14-10-1999, by that time it was sufficiently known to the concerned authority that the detenu was concealing himself so that the order cannot be served upon him, the steps ought to have been taken under section 7(2)(a) by publication of notice in the Official Gazette directing the detenu to appear before such officer, at such place and within such period as may be specified in the order. The power given to the State Government or empowered officer mentioned in sub-section (2)(a) of section 7 is to secure the presence of the detenu who is absconding or is concealing himself before such officer so that the detention order can be served upon him. After the order under section 7(2)(a) is notified in the Official Gazette and the detenu fails to comply with such order, he is liable to be convicted under section 7(2)(b). The offence under section 7(2)(b) is cognizable by virtue of Clause (c) of sub-section (2) of section 7. Failure to take steps under section 7(2)(a) by the detaining authority or the sponsoring authority, in the facts and circumstances of the present case, also leads to an inference that sincere efforts on the part of the detaining authority were lacking in the execution of the detention order. We may however observe that no hard and fast rule can be laid down that the power under section 7(2)(a) of M.P.D.A. Act or availing of mode for cancellation of bail should be exercised within a particular time. Each case has to be seen in the backdrop of its own facts and circumstances. In the present case, in the totality of the facts and circumstances, we have no doubt that delay of two months and five days in executing the detention order has not been satisfactorily explained. As already indicated above, the gap for the period from 10-10-99 to 22-10-99, 6-11-99 to 12-11-99, 14-11-99 to 19-11-99 and 21-11-99 to 3-12-99 for not making any efforts whatsoever in serving the detention order has not at all been explained. On 5-11-99 the detenu was present in Metropolitan Magistrate, 6th Court in charge of 17th Court, but on that date also the detention order was not served upon him. No steps were taken for cancellation of bail of the detenu though he was absent on 14-10-99. The power given to the State Government and the detaining authority under section 7(2)(a) of M.P.D.A. Act was also not exercised. All these facts clearly indicate that no sincere efforts were made by the detaining authority in serving the detention order upon detenu without delay.
14. Though we have reached the conclusion that delay in executing the detention order has not been sufficiently explained by the respondents, before we close, we would like to state that the authorities cited by the learned Public Prosecutor viz. Kishore Sukhjan Raj Jain and others v. State of Rajasthan and others, 1995 S.C.C. (Criminal) 847. Shafiq Ahmad v. District Magistrate, Meerut and others, , Sayeed Farook v. Union of India, , have no application for the reasons which we have already indicated above.
15. Consequently, Criminal Writ Petition is allowed and rule is made absolute in terms of para 10(c) of the prayer clause which reads thus :
"10(c) That the order of detention bearing No. 467/PCB/DP.Zone-III/1999 dated 30-9-99 (At Annex. 'A' ) issued under section. 3(1) of M.P.D.A. Act, 1981 (Amendment 1996) passed by the Commissioner of Police, Bombay be quashed and set aside and on quashing the said order, the detenue be released forthwith."
16. The detenu be released, accordingly, forthwith if not required in any other case.
17. No costs.
Criminal writ petition allowed.