1 50 wp.1763.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1763 OF 2010 Shyam Sunder Indermal Jhanwar. ... Petitioner Vs. The State of Maharashtra and ors. ... Respondents ----- Mr. Shirish Gupte, Senior Counsel, with Mrs. A.M.Z. Ansari for the Petitioner. Mr. J.P. Yagnik, APP for the State. ----- CORAM : A.M. KHANWILKAR and U.D. SALVI, JJ. DATE : 01 st September, 2010. P.C. 1 By this writ petition under Article 226 of the Constitution of India, the Petitioner has challenged the detention order passed by Respondent No.2 bearing No. PSA-1206/CR-137(7)/SPL-3(A) dated 13 th December, 2007 against the brother of the Petitioner Shrikant Indramal Jhanwar (hereinafter referred to as the detenue). The detenue was taken into custody in connection with the aforesaid detention order on 16 th June, 2010. Since then, he is undergoing detention in connection with the said order passed under Section 3 (1) of COFEPOSA Act, 1974. Besides the detenue, even the Petitioner herein (Shyamsunder Indramal Jhanwar) 2 50 wp.1763.10 was also detained on the same set of material. The Petitioner, however, was detained on 25 th July, 2008. The detention order passed against him was challenged by way of Criminal Writ Petition No. 1662 of 2008. This Court by its judgment dated 16 th December, 2008 allowed the said writ petition and was pleased to quash the detention order passed against the Petitioner (Shyamsunder Indramal Jhanwar). That was passed on the findings, amongst other, that there was delay in issuance of detention order. As a result of which, the same was vitiated. It was also found that the detention order as passed by Respondent No.2 suffered for non application of mind. 2 The Petitioner before us has invoked the same grounds. The learned APP appearing for the State in all fairness accepts that the material on the basis of which the Petitioner herein as well as the detenue were detained is identical and involve same set of facts. He, however, submits that insofar as detenue is concerned, the order of detention could not be executed against him for quite sometime as he was absconding. He further submits that the detenue herein has made representation, which is pending consideration before the Advisory Committee and the decision of the Advisory Committee is awaited. 3 Insofar as the last two aspects pointed out by the learned APP, in our opinion, the same have no bearing on the conclusion that we would ultimately record in the present case. The fact that the detention 3 50 wp.1763.10 order could not be executed on the detenue herein for quite sometime, cannot absolve the Detaining Authority from explaining the long delay in issuance of detention order. In the case of the Petitioner (detenue’s brother), it has been found by this Court that the information was received by the Home Department in December, 2006 on the basis of which investigation proceeded, the under Secretary forwarded the file to the Detaining Authority on 05 th January, 2008 upto 12 th February, 2007, it remained pending with the Detaining Authority. It was also noticed that the report was received by the Detaining Authority on 15 th March, 2007 thereafter the file was forwarded to the Assistant to prepare a note, who in turn, submitted to the under Secretary on 12 th April, 2007. The under Secretary gave his signature on 12 th April, 2007 and forwarded the same to the Detaining Authority. In the facts, which emerged from the record, which are squarely applicable to the case in hand, the Court found that each officer at different level took atleast one month time to take decision and take forward the file. No explanation was offered as to why one month period was required by each officer. The stand taken in the case of the present detenue is reiterated virtually verbatim even in the present case. We may usefully refer for the affidavit of the Respondent, which reads thus: “6. With reference to para 5 (ii) of the petition, I state that the Sponsoring Authority had forwarded the proposal for preventive detention of the detenue under COFEPOSA Act, on 26.12.2006, which was received in the office of the Detaining Authority on 4 50 wp.1763.10 27.12.2006. The concerned Assistant prepared a scrutiny note on 03.01.2007 and submitted it to the Under Secretary. The Under Secretary endorsed it on 03.01.2007 and forwarded it to the then Detaining Authority. The then Detaining Authority endorsed it on 17.01.2007 and directed to call I.O. for discussion. The case was discussed by the I.O. with the then Detaining Authority on 12.02.2007. Thereafter, as per the discussion of I.O. with the then Detaining Authority the Sponsoring Authority forwarded its report on 14.03.2007. In the meanwhile I assumed the office and hence by office note dated 11.04.2007 the facts of the case were submitted to me as the new Detaining Authority on 30.04.2007. I discussed the proposal with the I.O. and thereafter I directed to get the remaining sets of the relied upon documents which were received by the letter dated 05.10.2007 from Sponsoring Authority and placed before me on 17.10.2007. I endorsed the note on 19.10.2007. Thereafter, the work of stamping the documents was done. After completion of stamping work, I as the then Detaining Authority formulated draft Detention Order and ground of detention. The fair copy of detention order, the grounds of detention and annexure were got typed by the Assistant and submitted to the Under Secretary on 13.12.2007. The Under Secretary gave his endorsement on 13.12.2007 and forwarded it to the Deputy Secretary. The Deputy Secretary endorsed it on 13.12.2007 and forwarded it to me. I approved the same on 13.12.2007 and the abovementioned detention order was issued against the detenue. Therefore, it cannot be said that the detention order is malafide and ab- initio null and void.” 5 50 wp.1763.10 4 Suffice is to observe that the ultimate conclusion reached in the case of Petitioner herein (detenue’s brother) that there was unexplained delay in issuance of detention order applies on all fours to the case of the present detenue as well. This one ground is good enough to conclude that the detention order passed even against this detenue is vitiated. It is not necessary for us to enter upon the second ground as to whether it was a case of non application of mind by the Detaining Authority. It is asserted by the counsel for the Petitioner that even the said ground is squarely applicable to the present petition as well as has been accepted by this Court in the case of detenue’s brother in Criminal Writ Petition No. 1662 of 2008. 5 Accordingly, we allow this writ petition in terms of prayer clause (a). The detention order passed against the detenue - Shrikant Indramal Jhanwar dated 13 th December, 2007 bearing No. PSA-1206/CR-137(7)/SPL-3(A) is quashed and set aside and the Respondents are directed to release the detenue forthwith unless required in some other case. 6 Petition disposed of accordingly. [ U.D. SALVI, J ] [ A.M. KHANWILKAR, J ]