IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No.2093 OF 2008 CRIMINAL WRIT PETITION No.2093 OF 2008 CRIMINAL WRIT PETITION No.2093 OF 2008 Smt. Asiabi Abdul Sattar Khan Age 45 years, Occupation Housewife Residing at Plot No.13/K/7, Road No.3, Shivaji Nagar,Govandi, Mumbai - 400 043. ..Petitioner. ..Petitioner. ..Petitioner. vs. 1. Shri Hasan Gafoor Commissioner of Police Mumbai. 2. The State of Maharashtra (Through the Secretary Home Department(Spl). Mantralaya, Mumbai. 3. The Superintendent Nashik Road Central Prison Nashik. ..Respondents. ..Respondents. ..Respondents. WITH CRIMINAL WRIT PETITION No. 2132 OF 2008 CRIMINAL WRIT PETITION No. 2132 OF 2008 CRIMINAL WRIT PETITION No. 2132 OF 2008 Mohammad Asif Abdul Sattar Khan @ Mental, Detenue No. 145. Nashik Road, Central Prison, Nashik. ..Petitioner. ..Petitioner. ..Petitioner. vs. State of Maharashtra. ..Respondent. ..Respondent. ..Respondent. Shri U. N. Tripathi, Advocate Shri U. N. Tripathi, Advocate Shri U. N. Tripathi, Advocate for the Petitioner. for the Petitioner. for the Petitioner. Mrs A.S. Pai, A.P.P. for the Mrs A.S. Pai, A.P.P. for the Mrs A.S. Pai, A.P.P. for the State. State. State. CORAM : BILAL NAZKI AND CORAM : BILAL NAZKI AND CORAM : BILAL NAZKI AND A.R. JOSHI,JJ. A.R. JOSHI,JJ. A.R. JOSHI,JJ. DATED : 26TH FEBRUARY,2009. DATED : 26TH FEBRUARY,2009. DATED : 26TH FEBRUARY,2009. ORAL JUDGMENT :(Per Bilal Nazki,J.):- ORAL JUDGMENT :(Per Bilal Nazki,J.):- ORAL JUDGMENT :(Per Bilal Nazki,J.):- 1. Writ Petition No.2093 of 2008 has been filed by the mother of Detenu challenging the order of detention passed on 23.6.2008 executed on 24th June, 2008. Another Writ Petition being No. 2132 of 2008 is filed by the Detenu himself, challenging the same order of detention dated 23.6.2008 passed by the Commissioner of Police, Brihan Mumbai (the Detaining Authority) Therefore, both the writ petitions are disposed of by this order. 2. The Detenu had been arrested in C.R. No. 64 of 2008 on 7.3.2008 and in C.R. No. 65 of 2008 on 8.3.2008 respectively registered by Shivaji Nagar Police Station, Mumbai. In both the crimes he was admitted to bail on 15.3.2008. However, the Detenu could avail bail only in one crime on 28.3.2008. 3. The grounds of detention served on the detenu disclose that the Detaining Authority relied upon these two cases and also two incamera statements. The incamera statements were recorded on 16th and 17th May, 2008, when already the Detenu had been ordered to be bailed out though he had not availed the bail till that date. 4. We have heard the learned counsel for the Detenu as well as the learned A.P.P. for the State and perused the record. 5. The learned counsel for the Detenu challenges the order of detention mainly on three grounds - that names of so called alleged associates of the Detenu as mentioned in the grounds of detention have not been disclosed. Secondly, he contends that in the grounds of detention the Detaining Authority has referred to many criminal cases pending against the Detenu but the details and description of those cases has not been furnished nor any record pertaining to those cases have been furnished which has prejudiced the right of the Detenu to make a representation in terms of Article 22 of the Constitution of India. Thirdly, it is contended that in order to get an excuse for passing an order of detention the police managed to record the statements of two witnesses behind his back on 16 and 17th May, 2008, only to defeat the purpose of grant of bail, which was granted in favour of the detenu on 15.5.2008. 6. Coming to the first argument, we have seen grounds of detention, the Detaining Authority stated as under:- " The complainant knows you as Goonda. You with your associates rob the businessmen from the Road No.2, Shivajinagar, Govandi, Mumbai at the point of knife, on which you earns your livelihood. Many criminal cases have been registered against you. You have created a reign of terror in the said area". 7. So the Detaining Authority has mentioned that many criminal cases had been registered against the Detenu. No description of such cases is given. The Detaining Authority has also mentioned associates of the detenue who allegedly robbed businessmen of the area but no description of those associates have been given. 8. It appears that a proposal was initiated for detention of the Detenu by the Senior P.I. P.C.B., C.I.D. Mumbai. This proposal indicates description of eight cases pending trial against the detenu-accused which were from the years 2001 till 2006. This report also mentions two other offences - C.R. Nos. 64 of 2008 and 65 of 2008 to which a reference has been given by the Commissioner of Police, Brihan Mumbai in the grounds of detention. Then it also mentions that the detenu had been detained previously also under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (the M.P.D.A. Act for short) in the years 2004 and 2006. Then, it also refers to incamera statements to which a reference is made by the Detaining Authority in the grounds of detention. 9. When the note of proposed detention came to be presented by Sr.P.I. Shivaji Nagar Police Station, Mumbai, it went to the D.C.P. (Prevention). He submitted as under:- "that there is sufficient material on record to say that the detenu is a dangerous person and his activities are prejudicial to the maintenance of public order. Submitted with recommendation. Orders solicited". 10. Then, it went to Additional C.P. (Crime). He wrote as under:- "that the proposed detenu (P.D.)has been detained twice under M.P.D.A. Recent criminal cases which have been relied upon clearly points towards the threat to public order. Circumstances on record suggest that this is a fit case for detention under MPDA. Submitted with recommendation". 11. Then, the file was put up before the Commissioner of Police who is the Detaining Authority. He records the following:- " The P.D. as per record has a long history of criminal activity, which could not even be controlled by the usual preventive action measures. Thus, to confine his activities which are prejudicial to public order, it is considered necessary to detain him". 12. The aforesaid note dated 31.5.2008 of Addl.C.P. (Crime) makes it abundantly clear that whatever material was before the Detaining Authority on 6.5.2008 was taken into consideration and this also reflects in the grounds of detention to which a reference is made hereinabove. 13. Since the Detaining Authority has not been able to furnish the material which was relevant and taken into consideration by him while recording subjective satisfaction, detention order cannot be sustained. 14. It is submitted by the learned Public Prosecutor that the Detaining Authority had mentioned in the grounds of detention itself that he was taking into consideration only those instances which were mentioned by him in paragraph 5 of the grounds of detention to come to his subjective satisfaction that the Detenue needs to be detained. Therefore, any other material to which reference has been made in the grounds of detention should not be taken as material on which the Detaining Authority relied while arriving at subjective satisfaction. This is not borne of the record. The Commissioner recorded his subjective satisfaction on 5.6.2008 that the Detenue needs to be detained. The grounds of detention were not in existence on that day. Thereafter, file of proposed detention went to D.C.P. (Prevention). He did not record anything. Then the file went to Sr.P.I. P.C.B. C.I.D. who recorded as under:- "that the grounds of detention, D.O.S., C.O.S. and Hindi translation set of vital documents and other relevant papers duly checked by A.C.P. Deonar Division are put up herewith for perusal and onward submission to the C.P. Mumbai for further order please. Grounds formulated and checked by the C.P." 15. Thereafter, the file went before the D.C.P. for approval and signature. Thereafter, file has went to D.C.P. on 19.6.2008 and Commission of Police merely signed it on 23.6.2008. 16. We have stated in earlier cases also that the right to liberty is the most cherished right of the citizens of this country. The Constitution provides that nobody shall be deprived of his life and liberty except according to procedure established by law. In cases of preventive detention a man is deprived of his liberty without any charges being levelled against him. Since it is an exception to the rule of liberty, Courts have been strict in examining whether this liberty is being deprived of after following procedure established by law. The power to detain a person has been given to the Government under different statutes and even to different high ranking officials. Those officers are required to understand that they have an exceptional and extraordinary power and they should not deprive people of their liberties in a routine manner. 17. The file discloses that the grounds were not in existence when the Commissioner recorded his satisfaction that the detenu needs to be detained as his remaining at large would be prejudicial to the public order. 18. When the Commissioner recorded his satisfaction that the detenue needs to be detained, he noted that the detenue had a long history of criminal activities. Therefore, it would be appropriate to believe that whatever material was referred to by the Police Inspector in his report was taken into consideration by the Commissioner. 19. The order of subjective satisfaction came into existence on 5/6th June, 2008 whereas the grounds were finally approved on 23rd June, 2008. For these reasons, we feel that the detenu has been deprived of his valuable right to make representation against the material which was taken into consideration by the Detaining Authority while passing the order of detention and as such order of detention cannot be upheld. 20. For the reasons recorded above, we allow both the petitions and quash the order of detention dated 23.6.2008. The detenue, namely Mohammad Asif Abdul Sattar Khan alias Mental, r/o Shivajinagar, Govandi, Mumbai be released forthwith if not required in any other case. The Rule is made absolute, accordingly. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.) (BILAL NAZKI,J.) (BILAL NAZKI,J.) (BILAL NAZKI,J.)