Bombay High Court
Mandar Ajit Borkar vs The Commissioner Of Police on 23 January, 2012
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar, R.G.Ketkar
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SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3508 OF 2011
Mandar Ajit Borkar,
Age 31 years, residing at : Vij-B,
Tower Garden, Grow Complex, Flat 1204,
Chikuwadi, Borivali (W), Mumbai - 92
(Now detained at Thane Central Jail) ...Petitioner
Versus
1. The Commissioner of Police,
Brihan Mumbai
2.The State of Maharashtra
(Through the Secretary,
Home Department (Spl),
Mantralaya, Mumbai - 400 032.
3.The Superintendent,
Thane Central Prison, Thane. ...Respondents
......
Mr.S.V.Kotwal a/w Mr.Hrishikesh Mundargi for Petitioner.
Mrs.M.H.Mhatre, A.P.P. for Respondent-State.
Mr.Vinod Pawar, A.P.I. from Borivali Police Station is present.
......
CORAM:- A.M.KHANWILKAR AND
R.G.KETKAR, JJ.
DATED:- JANUARY 23, 2012.
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ORAL JUDGMENT (Per A.M.Khanwilkar, J.) :
1. This Petition under Article 226 of the Constitution of India takes exception to the order passed by the Commissioner of Police, Brihan Mumbai dated 14th October, 2011, in exercise of powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as `the said Act'), on the ground that the petitioner is a dangerous person who has unleashed a reign of terror and have become a perpetual danger to the society at large in the concerned localities and areas adjoining thereto in the jurisdiction of the Police Station in Brihan Mumbai. Further, people residing and carrying out their daily avocations in the said localities and areas are terror stricken and their normal life is affected adversely. In other words, the petitioner was carrying on activities prejudicial to the maintenance of public order in the concerned localities in Brihan Mumbai and Thane District.
2. Although diverse grounds have been raised to challenge the detention order during the course of argument, the Counsel for the ::: Downloaded on - 09/06/2013 18:06:24 ::: 3 3508.11.doc petitioner confined the challenge on eight grounds to which we shall make reference hereinafter.
3. In substance, it is asserted that there is delay in passing of the detention order by the Detaining Authority which has vitiated the decision as there was no live-link with regard to the prejudicial activities necessitating detention of the petitioner. In ground (p), the delay in passing detention order essentially refers to three different stages. The first is between 23rd August, 2011 to 2nd September, 2011. However, during the course of arguments, the contention regarding delay in passing the detention order during this period is not pressed. The argument of the petitioner was with reference to delay in passing of the detention order between 2nd September, 2011 till 27th September, 2011 in the first place and again for the period between 27th September, 2011 to 7th October, 2011. Besides, it is argued that there was no material before the Detaining Authority that the live-link regarding the prejudicial activities of the petitioner has not been snapped. As a result, the detention order was vitiated.
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4. In response, Detaining Authority has filed reply affidavit to rebut the said challenge. It is stated that time taken between 2nd September, 2011 to 27th September, 2011 was on account of the fact that the Additional Commissioner of Police (Crime) who was handling the file was busy in Ganpati Festival Bandobast. Moreover, the said Officer was also preoccupied in some important investigation relating to serial bomb blasts which shook the city on 13th July, 2011. With regard to the alleged delay between 20th September, 2011 to 4th October, 2011, it is stated that the Detaining Authority himself was on foreign visit for official work. As a result of which, no decision could be taken on the proposal between this period.
5. The explanation so offered by the respondents has been criticised by the Counsel for the petitioner on the argument that there was nothing on record to indicate that the file could not have been handled by any other Officer than the Additional Commissioner of Police (Crime) between 4th September, 2011 to 27th September, 2011. In the first place, the said Additional Commissioner of Police (Crime) was neither the Sponsoring Authority nor the Detaining Authority. Moreover, there is ::: Downloaded on - 09/06/2013 18:06:24 ::: 5 3508.11.doc nothing to indicate that the file could not have been delegated to some other Officer. As regards the alleged delay between 27th September, 2011 till 7th October, 2011, it was argued by the learned Counsel for the petitioner that the explanation offered by the Detaining Authority that he was on foreign visit for official work between 20th September, 2011 till 4th October, 2011 can be no justification and cannot be said to be satisfactorily explained by the Detaining Authority. This is so because the power of passing detention order could have been delegated to some other Officer other than the Official who had to undertake foreign tour for official work for such a long time. The argument though attractive, will have to be stated to be rejected.
6. We shall first deal with the explanation offered by the Detaining Authority for the period between 2nd September, 2011 till 27th September, 2011. Indeed, the Additional Commissioner of Police (Crime) was neither the Sponsoring Authority nor the Detaining Authority.
However, as per the office procedure, the file had to pass through the Additional Commissioner of Police (Crime) for endorsing his opinion. It is possible that that work could have been delegated to some other Officer considering the fact that the proposal was pertaining to issuance of order of detention under the said Act. However, that does not mean that the delay ::: Downloaded on - 09/06/2013 18:06:24 ::: 6 3508.11.doc between 4th September, 2011 to 27th September, 2011 has not been sufficiently explained. The fact that the concerned Officer was busy with Ganpati Festival Bandobast as well as preoccupied with some important investigation related to serial bomb blasts which shook the City on 13th July, 2011 during the same time is not in dispute. That is a sufficient explanation offered by the State Authorities for time spent in taking final decision on the proposal in question. Moreover, it is well established position that mere delay cannot be the basis to doubt the subjective satisfaction recorded by the Detaining Authority. In addition to unexplained delay, it is required to be demonstrated that the live link between the prejudicial activities of the detenu had snapped when the detention order was actually issued. This position is no more res integra.
The Apex Court in the case of Rajendrakumar Natvarlal Shah vs. State of Gujarat reported in (1988) 3 SCC 153, in particular, paragraphs 10 to 12 thereof, had occasion to deal with this proposition. The Court noted that even though there was no explanation for the delay between the relevant period, it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the Detaining Authority was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. The Court noted ::: Downloaded on - 09/06/2013 18:06:24 ::: 7 3508.11.doc that the Court must find that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention. Counsel for the petitioner did make an attempt to explain this decision by relying on the Judgment of the Apex Court in Pradeep Nilkanth Paturkar vs. S.Ramamurthi & Ors. reported in 1993 Supp (2) SCC 61. According to him, the decision in the case of Rajendrakumar Natvarlal Shah (supra) has been considered in the later decision relied by him. In Paragraph 12 of the said decision, reference is made to the decision in Rajendrakumar Natvarlal Shah (supra). However, we fail to understand as to how this Judgment will be of any avail to the petitioner, as the legal position stated in Rajendrakumar Natvarlal Shah (supra) referred to above has not been dissented or explained in any other manner.
7. The legal position as expounded in Rajendrakumar Natvarlal Shah (supra) has been restated in the case of Ashok Kumar vs. State of Maharashtra & Ors. reported in 2003 All M.R. (Cri.) 1237, in particular, paragraph 22 thereof. Very recently, the Division Bench of this Court to which one of us (A.M.Khanwilkar, J.) was party, had occasion to consider this aspect in the case of Shamsher Singh S/o.Balwinder Singh vs. The State of Maharashtra & Ors. in Criminal Writ Petition ::: Downloaded on - 09/06/2013 18:06:24 ::: 8 3508.11.doc No.2188/2011 decided on 11th October, 2011 (see paragraphs 16 to 18). It has been found that the settled legal position is that the general rule is that delay simplicitor in issuance of the detention order does not vitiate the order, whereas, the order would be vitiated if the live-link of the prejudicial activity of the petitioner and the rationale of clamping a detention order on him is snapped.
8. Applying the settled legal position referred to above, to the fact situation of the present case, we have no hesitation in taking the view that the ground of challenge under consideration raised by the petitioner is devoid of merits. Notably, the Counsel for the petitioner, in all fairness, has confined his argument to period spent between 2nd September, 2011 to 27th September, 2011 in the first place and again between 27th September, 2011 till 7th October, 2011. In the first place, the relevant period is only around one month - and the aggregate time from the date of grant of bail comes to only about two months. It is unfathomable that the live-link of the prejudicial activities of the detenu would be snapped within such a short period. Further, the Detaining Authority has already offered explanation for the said period. As a matter of fact, the time spent between release of petitioner on bail on 5th August, 2011 till issuance of order of detention ::: Downloaded on - 09/06/2013 18:06:24 ::: 9 3508.11.doc dated 14th October, 2011 cannot be said to be gross delay or for that matter resulting in snapping of live-link regarding the prejudicial activities of the petitioner. Further, there is intrinsic indication in the grounds of detention that the Detaining Authority has recorded his subjective satisfaction that there was likelihood of petitioner indulging in such prejudicial activities affecting the maintenance of public order "in future". Taking overall view of the matter, therefore, the argument regarding detention order having vitiated because of delay in passing the same does not commend to us. The same is rejected.
9. That takes us to the next grounds of challenge as articulated in ground (s) of the Writ Petition. The same reads thus :
"(s). The detaining authority has informed the Petitioner in the grounds supplied to him that he cannot be represented by a legal practitioner before the Advisory Board. Such appraisal is misleading and contrary to the law laid down by the Hon'ble Supreme Court of India in the case of State of Maharashtra and ors. V/s. Zubair Haji Qasim as reported in (2008) 12 SCC 792. This misleading appraisal has affected the Petitioner's right to make effective representation before the Advisory Board."
10. This challenge is essentially founded on the decision of the Apex Court in State of Maharashtra & Ors. vs. Zubair Haji Qasim reported in (2008) 12 SCC 792. We shall first analyse this decision. In ::: Downloaded on - 09/06/2013 18:06:24 ::: 10 3508.11.doc that case, the controversy before the Apex Court was that the detenu in the proceedings before the Advisory Board had made representation for permission to be represented in the proceedings through a legal practitioner.
The Advisory Board rejected that request. In the Writ Petition filed by the detenu, the High Court overturned the opinion of the Advisory Board and instead held that the Advisory Board ought to have considered the request by due application of mind and not rejected it in perfunctory manner. That decision of the High Court was unsuccessfully challenged by the State before the Apex Court. The observations made in this decision, therefore, are in the context of the fact situation of that case. In other words, this decision is not an authority on the proposition that if the Detaining Authority were to refer to the position as stipulated by the Act of 1981, it would result in denial of opportunity to the detenu of making effective representation before the Detaining Authority as such. In the present case, it is noticed that the grounds of detention served on the detenu merely restate the position envisaged in Section 11(5) of the said Act. Section 11(5) of the said Act reads thus:
"11(5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board."::: Downloaded on - 09/06/2013 18:06:24 :::
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11. In the grounds of detention served on the detenu, the Detaining Authority has stated as follows:
"12. ...... You have also the right to seek an assistance of any friend who is not a legal practitioner during the course of hearing of the Advisory Board as well as you have the right to examine the witnesses if you so desire."
12. We fail to understand as to how this intimation given to the petitioner results in misleading appraisal as is contended by the petitioner.
There is nothing in this intimation to suggest that the petitioner is not entitled to request the Advisory Board to allow him to be represented by a legal practitioner. As observed by the Apex Court, it is not the right of the detenu but it is the discretion of the Advisory Board to allow assistance to be given by a legal practitioner to the detenu. In our opinion, there is no substance in the argument that the grounds of detention resulted in misleading the detenu about his right to make representation to the Advisory Board and request the Advisory Board to allow him to take assistance of a legal practitioner.
13. As a matter of fact, in the present case, the petitioner did not make any request to the Advisory Board for permitting him to take ::: Downloaded on - 09/06/2013 18:06:24 ::: 12 3508.11.doc assistance of legal practitioner. If it is so, the petitioner cannot rely on the observations of the Apex Court in the case of State of Maharashtra & Ors.
vs. Zubair Haji Qasim (supra), where the detenu had in fact made representation to the Advisory Board for providing him legal assistance which request was rejected in perfunctory manner. Accordingly, the ground under consideration deserves to be rejected.
14. That takes us to the third ground urged before us. It is articulated in ground (r). The sum and substance of this grievance is that the grounds of detention were translated on 12th October, 2011. The same were different from grounds formulated by the Detaining Authority after 13th October, 2011. This grievance is based on some assumptions of the petitioner. The Detaining Authority in its reply has clearly stated that he had gone through the entire documents and then formulated the grounds of detention and issued the order of detention on 14th October, 2011 and that the same was furnished with its true translation in Marathi to the petitioner/detenu. It is further stated that the ground of detention which were translated on 12th October, 2011 are the same grounds which had been formulated after 13th October, 2011. The Detaining Authority has thus denied that he had passed the detention order mechanically or otherwise.
::: Downloaded on - 09/06/2013 18:06:24 :::13 3508.11.doc Considering the reply given by the Detaining Authority, which has not been rebutted and cannot be rebutted, as the same is supported by the notings in the original record which were produced before the Court during the hearing, we have no hesitation in taking the view that the grievance in ground (r), which is under consideration, is devoid of merits and founded on conjectures and surmises of the petitioner.
15. That takes us to the next ground of challenge, which is articulated in ground (h) of the Petition. According to the petitioner, the proposal submitted by the Senior Inspector of Police, Borivali Police Station was a vital document and that ought to have been furnished to the petitioner along with the grounds of detention. Failure to furnish the said proposal submitted by the Sponsoring Authority, the continued detention of the petitioner is vitiated. This grievance of the petitioner has been countered by the Detaining Authority in the reply affidavit. In Paragraph No.2, the Detaining Authority has stated that the proposal was only referred to and not relied upon document. The document relied upon by him for forming of his subjective satisfaction were already supplied to the detenu along with the grounds of detention. He has further stated that he considered only the relied upon documents.
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16. To get over this stand taken by the Detaining Authority, it was argued that since the entire process for detaining the petitioner commenced with the proposal submitted by the Borivali Police Station, the said document was a vital document and ought to have been furnished to the petitioner and especially when the Detaining Authority was not claiming any confidentiality or privilege in respect of the said document. This argument will have to be stated to be rejected, considering the legal position expounded in series of decisions which have been considered by the Division Bench of this Court in the case of Shri.Mohamed Ali Mohiddin Shaikh vs. Commissioner of Police & Anr. in Criminal Writ Petition No.176 of 2011 decided on 22nd March, 2011. The Division Bench after considering all the relevant decisions on the point, in Paragraph No.12 has observed thus:
"12. In the light of the aforesaid judgment, according to us the non-
supply of the copy of the proposal, though a privilege was not claimed by the respondents would not vitiate the detention order on the ground that the petitioner's right to making an effective representation was affected."
We are in agreement with the said opinion of the Division Bench of this Court, more so, because even in the present case, the proposal was neither a ground of detention nor the material on which the grounds of detention were founded. Accordingly, even this ground of challenge should fail.
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17. That takes us to the next ground, which is articulated in ground
(j) of the Petition. The grievance of the petitioner is that the two in-camera statements relied upon by the Detaining Authority were recorded on 5th August, 2011 and 8th August, 2011 only after the petitioner was released on bail on 5th August, 2011. The learned Counsel for the petitioner relying upon the decision of the Apex Court in the case of Pradeep Nilkanth Paturkar (supra), in particular, Paragraph No.13, submitted that the Apex Court has deprecated the practice of recording of in-camera statements after the detenu is released on bail.
18. Reverting to the decision of the Apex Court in the case of Pradeep Nilkanth Paturkar (supra), it is noticed that the only question before the Apex Court was whether there has been an undue and unreasonable delay in passing the order by the Detaining Authority and that the delay which stands unexplained, vitiates the impugned order. No other question was raised before the Apex Court. At any rate, the observation in paragraph No.13 on which reliance is placed by the petitioner, cannot be considered as an authority on the proposition that the in-camera statements recorded after the detenu is released on bail, per se ::: Downloaded on - 09/06/2013 18:06:24 ::: 16 3508.11.doc cannot be relied upon and if relied, would render the detention illegal. In the present case, the statement of witness recorded on 5th August, 2011, the day on which petitioner was ordered to be released on bail, cannot be srticto senso stated to be after the petitioner was released on bail. Because, it was done contemporaneously on the same day itself. In other words, the decision of the Apex Court in Pradeep Nilkanth Paturkar (supra) will be of no avail to the petitioner. Accordingly, even this ground of challenge does not commend to us.
19. That takes us to the next ground of challenge which is articulated in ground (k) of the Petition. It is alleged that the Detaining Authority has not considered the affidavit of the complainant which absolves the detenu of all the charges made against him. The affidavit was sworn on 22nd July, 2011 and therefore, it ought to have been considered by the Detaining Authority while forming subjective satisfaction. The Detaining Authority in the reply affidavit has dealt with this challenge. The Detaining Authority has asserted that along with the proposal dated 23rd August, 2011 for detention of the petitioner/detenu, the affidavit dated 22nd July, 2011 was placed before it. The Detaining Authority has then stated that on 26th July, 2011, the statement of the complainant Shri.Vyas was ::: Downloaded on - 09/06/2013 18:06:24 ::: 17 3508.11.doc recorded and the same was also placed before him which indicates that the complainant had sworn the said affidavit under duress and pressure of the petitioner and his associates and the same should not be considered and taken into account. The Detaining Authority has asserted that he has duly considered the efficacy of the said affidavit dated 22nd July, 2011 in the light of the subsequent statement of the complainant dated 26th July, 2011. Thus, it is not a case of non-consideration of the favourable document as such. On the other hand, from the reply affidavit of the Detaining Authority, it is noticed that the Detaining Authority did consider the said affidavit along with the statement of the complainant dated 26th July, 2011, which was in subsequent point of time, and on recoding his subjective satisfaction, passed the order of detention. It is not for this Court to sit over the said subjective satisfaction as a Court of Appeal. Moreover, from the grounds of detention served on the detenu, it is seen that the Detaining Authority has made reference to the affidavit pressed into service by the petitioner dated 22nd July, 2011 in ground 5(a)(iii). Suffice it to observe that the challenge to the detention is founded on the conjectures and surmises that the Detaining Authority has not considered the efficacy of the affidavit dated 22nd July, 2011, which was executed by the complainant Shri.Vyas. Hence, even this ground of challenge ought to fail.
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20. That takes us to the next ground of challenge which is articulated in ground (L). Once again, the argument is that the detention order suffers from non-application of mind. According to the petitioner, the complaint filed at Mira Road Police Station vide NC No.1574/2011 was registered at the behest of the complainant regarding threats given by the petitioner and his accomplices. The said complaint, however, was registered against unknown persons. It states that threatening call was received from unknown number. According to the petitioner, therefore, this complaint relied upon by the Detaining Authority does not disclose the involvement of the petitioner at all and hence, could not be the basis to detain the petitioner. Moreover, there is no indication from the subsequent statement of the complainant as to what prevented the complainant to mention the name of the petitioner while registering the complaint itself.
The Counsel for the petitioner has placed reliance on the decision reported in 2008 Cri.L.J. 4567 - Union of India vs. Ranu Bhandari. In Paragraph 25 of the said decision, the Apex Court has observed that the consistent view expressed in the matter relating to preventive detention, the Detaining Authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to ::: Downloaded on - 09/06/2013 18:06:24 ::: 19 3508.11.doc reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public. There is no difficulty in following the exposition of the Apex Court referred to above. However, in the fact situation of the present case as noticed earlier, it is not as if the Detaining Authority was not conscious about the absence of name of the detenu in the original complaint. The Detaining Authority, however, preferred to rely on the disclosure made by the complainant in his statement on 26th July, 2011. Once, the Detaining Authority preferred to rely on the said statement, which is self explanatory and the subjective satisfaction is founded on the said statement, it is not open for this Court to take some other view than the satisfaction recorded by the Detaining Authority, inspite of the said deficiency in the complaint. The Detaining Authority in the grounds of detention has not only adverted to complaint but also the affidavit of the complainant including the subsequent statement dated 26th July, 2011. In this view of the matter, we fail to understand as to how the fact that the petitioner's name was not disclosed in the original complaint, will be of any avail to the petitioner.
21. That takes us to the last ground urged before us, which is articulated in ground (n) of the Petition. The grievance of the petitioner is ::: Downloaded on - 09/06/2013 18:06:24 ::: 20 3508.11.doc that the Detaining Authority has not considered the order passed in favour of co-accused releasing him on anticipatory bail. It is alleged that it is not clear as to whether the Detaining Authority had seen the said order at all.
The reply affidavit filed by the Detaining Authority deals with this grievance of the petitioner. The Detaining Authority has asserted that he was aware that the co-accused was granted anticipatory bail. That fact was appraised to him by the Sponsoring Authority by submitting the proposal along with the copy of the order of bail granted to the petitioner/detenu dated 5th August, 2011. Notably, the ground of detention in paragraph 5(a)
(ii) refers to the fact that the accomplice of the petitioner Satya Chandrakant Shinde had moved application for anticipatory bail before the Sessions Court and the same was granted on 22nd July, 2011. On that date, the petitioner was arrested by the Borivali Police Station at about 1.30 hrs. In paragraph 5(a)(v), the Detaining Authority has again adverted to the factum of co-accused Satya Chandrakant Shinde having been released on anticipatory bail by the Sessions Court, Dindoshi, Mumbai on 22nd July, 2011. As aforesaid, the Detaining Authority has restated the position that he had considered the fact that the co-accused was already released on anticipatory bail on 22nd July, 2011. Considering the above, we fail to understand as to how non placement of anticipatory bail order in favour of ::: Downloaded on - 09/06/2013 18:06:24 ::: 21 3508.11.doc co-accused before the Detaining Authority would have any bearing on the subjective satisfaction of the Detaining Authority. The bail order passed in favour of the detenu (petitioner before this Court) admittedly was placed before the Detaining Authority. Inspite of the said order, the Detaining Authority formed subjective satisfaction that it was necessary to detain the petitioner as he was likely to indulge in prejudicial activities in future. In the recent decision in the case of Rashid Kapadia vs. Medha Gadgil & Ors. In Criminal Writ Petition No.3253/2011 decided on January 4, 2012, we had occasion to consider similar grievance. We have held that when the Detaining Authority does not refer nor rely on the contents of a particular document to form subjective satisfaction, the fact that the said document was not supplied to the detenu along with the grounds of detention would not enure in favour of the detenu. In other words, even the ground under consideration, for the reasons recorded earlier, is devoid of merits.
22. As no other ground was urged before us and for the reasons recorded hitherto, we proceed to dismiss this Petition. Hence, dismissed.
(R.G.KETKAR, J.) (A.M.KHANWILKAR, J.)
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