cr-wp-176-11.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 176 OF 2011 Shri. Mohamed Ali Mohiddin Shaikh ] Age 29 years, residing at : New Gautam ] Nagar, Flat No.1, Behind Suvarana Hotel ] Govandi, Mumbai-400 043 ] (The petitioner is lodged at Nashik Road ] Central Prison, Nashik) ]..Petitioner Detenu] Vs. 1 Commissioner of Police, ] Greater Mumbai ] 2 The State of Maharashtra ] Through the Secretary ] Preventive Detention ] Home Department ] Mantralaya, Mumbai-400 032 ]..Respondents ..... Mr. U.N.Tripathi Advocate for Petitioner Mrs. M.H.Mhatre A.P.P. for the State ..... CORAM : P.V. HARDAS & N. D. DESHPANDE, JJ. RESERVED ON : MARCH 08, 2011 DECLARED ON : MARCH 22, 2011 ORDER [PER P.V.HARDAS,J. ]: 1 This petition under Article 226 of the Constitution of 1 cr-wp-176-11.doc India impugns the order of detention bearing No. 34/PCB/DP/Zone- VI/10 dated 9th November, 2010 issued under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981, by the Commissioner of Police, Mumbai with a further prayer for quashing and setting aside the detention order and releasing the detenu forthwith. 2 Such of the facts as are necessary for the decision of this petition may briefly be stated thus: By order dated 9th November, 2010 in exercise of powers conferred by sub-section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981, hereinafter referred to as “the M.P.D.A. Act” the Commissioner of Police Brihan Mumbai issued the aforesaid detention order directing the detention of the petitioner under the Act. The grounds of detention dated 9th November, 2010 at paragraph 5(a) spell out the various illegal activities of the petitioner. Paragraph 5(a)(i) states that many criminal cases were registered against the petitioner at Deonar Police Station and the petitioner was arrested by police on several occasions. Paragraph 5(a)(i) gives details about the incident and paragraph 5(b) refers to the confidential inquiry as well as perusal of the proposal submitted by the Senior Inspector of Police Deonar Police Station 2 cr-wp-176-11.doc and the verification of incamera statements done by the Divisional Commissioner of Mumbai. The same paragraph further states that the Commissioner of Police found the contents of incamera statements to be true and at paragraph 5(b)(i) the incamera statement of witness “A” is referred to. At paragraph 5(b)(ii) the incamera statement of witness “B” is referred to. Exhibit-C is a list of documents which had been provided to the petitioner. 3 The petitioner therefore submitted his representation dated 22nd December, 2010 addressed to the Additional Chief Secretary Government of Maharashtra, Home Department (Special) Mantralaya, Mumbai. At paragraph B of the representation the petitioner requested that he be furnished with details of the place of offence in Crime No. 162 of 2010 and at paragraph E it is stated that though the grounds of detention referred to the petitioner and his two associates committing prejudicial activities, the names of the associates were not disclosed. The petitioner therefore requested to provide the names of the two associates referred to in the incamera statement of witness “B”. At paragraph F the petitioner requested that a copy of the proposal be furnished to the petitioner. At paragraph I, the petitioner requested that the name of “gang” including the details be furnished to the petitioner. The representation submitted by the petitioner came to be rejected by order dated 4th January, 2011. The petitioner being thus 3 cr-wp-176-11.doc aggrieved has filed the present petition. 4 On notice of this petition being issued to the respondents the Commissioner of Police Brihan Mumbai has filed his affidavit in reply. At paragraph 5 of the affidavit in reply, it is stated that the Senior Inspector of Police of Deonar Police Station, Mumbai submitted a proposal on 9th October, 2010 for the detention of the petitioner under the M.P.D.A. Act. It is also stated that the proposal was moved through proper channel and the Deputy Commissioner of Police Zone-VI Mumbai after satisfying himself that the prejudicial activities of the detenu in which the detenu was involved, came to the conclusion that the petitioner was dangerous desperado and nobody was willing to complain against him openly due to fear of retaliation. It is further stated that the Assistant Commissioner of Police was satisfied about the truthfulness of the incident and the fear expressed by the witnesses and after verification of the incamera statements the proposal was finalized and forwarded to the Deputy Commissioner of Police Zone-VI Mumbai. It is further stated that the Deputy Commissioner of Police Zone-VI after scrutinizing the entire material placed before him forwarded the proposal through Senior Inspector of Police, PCB, CID, to the Deputy Commissioner of Police (Preventive) Mumbai on 14th October, 2010 and thereafter the proposal was forwarded to the Commissioner of Police Brihan Mumbai on 28th October, 2010. It is also stated in the affidavit in 4 cr-wp-176-11.doc reply that after carefully considering and scrutinizing the material, the deponent was subjectively satisfied that the activities of the said person were prejudicial to the maintenance of public order and that he was dangerous person within the meaning of the M.P.D.A. Act. The Commissioner of Police was further satisfied that the said person was acting in a manner prejudicial to the maintenance of public order and it was necessary to detain him under the said Act with a view to prevent him from acting in such a manner in future. The affidavit further states that the detaining authority was satisfied about the truthfulness and genuineness of the said material as well as the statements of witnesses and after scrutinizing the entire proposal forwarded it to the Joint Commissioner of Police (Crime) for compliance on 3rd November, 2010. The Joint Commissioner of Police (Crime) thereafter forwarded it to the Deputy Commissioner of Police (Preventive) for preparing of set of documents and scrutiny and translation of grounds of detention and other related documents on 8th November, 2010 and thereafter the detention order came to be issued on 9th November, 2010. It is further denied that neither the name of the area nor that of the locality was mentioned in the two incamera statements of witness A and B. 5 The petitioner amended his petition and urged additional grounds which came to be replied by the additional affidavit. At paragraph 3 of the additional affidavit it is stated that 5 cr-wp-176-11.doc that the incamera statement of witness B did not reveal the names of the two associates of the petitioner and therefore the names could not be supplied to the petitioner. It is further submitted that a copy of the proposal could not be provided to the petitioner as the non-providing of the copy of the proposal would not vitiate his rights nor would the petitioner be hampered in making an effective representation. It is further stated that the grounds of detention are mentioned in paragraph 5 of the grounds of detention and reference to the earlier activities is only a preface/preamble to the grounds of detention and the same had not been considered while arriving at the subjective satisfaction. 6 We have heard Shri. U.N.Tripathi the learned Counsel for the petitioner and the learned A.P.P. who represents the respondents. Mr. Tripathi learned Counsel for the petitioner has urged before us that the incamera statement of witness B refers to the petitioner and his “two associates”. However, the names of two associates had not been furnished to the petitioner. It is further urged before us that the copy of the proposal submitted by the Senior Inspector has not been provided to the petitioner. It is also urged before us by the learned Counsel for the petitioner that the name and the details of the “gang” have not been provided to the petitioner. It is urged before us that on account of failure of the respondents to provide the necessary documents the right of the petitioner to make and submit an effective representation is 6 cr-wp-176-11.doc breached and therefore the detention order deserves to be quashed and set aside. 7 The learned A.P.P. has submitted before us that the information about the place of the offence was made known to the petitioner as the copy of the first information report in the crimes which are registered has been provided to the petitioner. It is further urged before us that the incamera statements of witness A and B also disclose the place of the commission of the alleged offence. It is also urged before us that the names of the associates of the petitioner could not be provided to the petitioner as the incamera statement of witness B did not disclose the name of the associates of the petitioner. It is further urged before us that the copy of the proposal was not provided to the petitioner as the same is not necessary and no prejudice can be said to have been caused to the petitioner on account of non-providing copy of the proposal. In respect of the name of the gang to which the petitioner belongs, it is stated that the authorities were unaware about the name of the gang and moreover that was not a ground on which the detention order was passed. The learned A.P.P. therefore has urged for dismissal of this petition. 8 Mr. Tripathi learned Counsel for the petitioner has referred to the judgment of the Supreme Court in `Khudiram Das Vs. State of West Bengal and others' (1975) 2 S.C.C. page 7 cr-wp-176-11.doc 81. Reliance is particularly placed on the observations of the Supreme Court at paragraph 6 of the judgment. The Supreme Court at paragraph 6 has held that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. 9 Reliance is also placed by Shri. Tripathi on the judgment of the Supreme Court in `Ramchandra A. Kamat Vs. Union of India' AIR 1980 S.C. 765. The Supreme Court in the aforesaid judgment has held that when the grounds of detention are served on the detenu, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. The Supreme Court further held that when the detenu makes a request for such documents, they should be supplied to him expeditiously. Similarly, reliance is placed by the learned Counsel for the petitioner on the judgment of the Supreme Court in `Smt. Icchu Devi Choraria Vs. Union of India and others' AIR 1980 S.C. 1983, in which the Supreme Court has held that the supplying grounds of detention includes documents relied upon in such grounds and unreasonable delay in supply of such material would make the detention illegal. 10 Reliance is placed on the judgment of the Supreme 8 cr-wp-176-11.doc Court in `Smt. Shalini Soni Vs. Union of India and others' AIR 1981 S.C. 431, which also lays down that the obligation imposed on the detaining authority by Article 22 (5) to afford the detenu the earliest opportunity of making representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. The Supreme Court at paragraph 4 further held that request for copies of documents to enable the detenu to make a further representation on merit as well as on other grounds in the event of the detaining authority not agreeing to revoke the order of detention for the reason mentioned in the communication would not divest the communication of its character as a representation. The Supreme Court in `Mrs. Nafiza Khalifa Ghanem Vs. Union of India' (1982) 1 S.C.C. 422 has also held that the documents and materials mentioned in the grounds of detention should be supplied to the detenu immediately on demand. 11 The learned A.P.P. has urged before us that non- furnishing of the copy of the proposal would not vitiate the detention of the petitioner. The learned A.P.P. has further urged before us that the copy of the proposal cannot be said to be a vital document on the basis of which the detention order was passed. The learned A.P.P. has placed reliance on the judgment of the Division Bench of this Court in `Nitin Narayan Pandare Vs. M.N.Singh and Ors.' 2002 ALL MR (Cri.) 1018. The Division 9 cr-wp-176-11.doc Bench at paragraphs 12 and 15 has held thus: “12. Since the proposal for detention forwarded to various authorities is a confidential document, it is not incumbent to furnish its copy to the detenu. The detenu's fundamental right to make an effective representation guaranteed by Article 22 (5) of the Constitution of India has not been violated. 15. It should be remembered that a proposal can neither be described as grounds of detention nor a material on which the grounds of detention are based. In that view of the matter, in our judgment, the failure of the detaining authority to supply to the detenu its copy would not impair upon the detenu's right of making an effective representation, guaranteed to him by Article 22 (5) of the Constitution of India.” Mr. Tripathi pointed out to us that privilege in respect of the proposal had not been claimed and therefore the copy of the proposal ought to have been provided to the petitioner. The Division Bench at paragraph 15 has answered the said submission by holding as under: “But, in our view, this would not make any difference to the 10 cr-wp-176-11.doc fate of the petition because, as observed by us earlier, the proposal was neither a ground of detention nor the material on which the grounds of detention were founded and the detenu's fundamental right to make a representation guaranteed under Article 22 (5) of the Constitution of India would not be violated because its copy has not been furnished to the detenu. As mentioned earlier, the said right would only be violated if the copy of the grounds of detention and/or the material on which they are founded is not furnished to the detenu.” Reliance is also placed by the learned A.P.P. on the judgment in `J. Abdul Hakeem Vs. State of Tamil Nadu and others' (2005) 7 S.C.C. 70. The Supreme Court has held that a detenu has a right to be supplied with the material documents on which reliance is placed by the detaining authority for passing the detention order and the detention order will not be vitiated due to non-supply of documents which although referred to in the order but were not relied upon by the detaining authority for forming its opinion or made basis for passing the order. In this case the detenu came to be arrested at an International Air Port while bringing goods of foreign origin in trade quantities the value of which was found in excess of the declared value. In the grounds of detention the detaining authority by referring to the passports of the detenu and the entries made therein, but not relying upon 11 cr-wp-176-11.doc these documents, passed the detention order. The Supreme Court therefore concluded that non-supply of the copies of the said documents to the detenu did not prejudicially affect the detenu's right to make a proper representation and therefore the detention order would not be vitiated. Similarly, the Supreme Court in `Radhakrishnan Prabhakaran Vs. State of Tamil Nadu' (2000) 9 SCC 170, has held that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. The Supreme Court held that copies of only such of those documents as had been relied on by the detaining authority for reaching the satisfaction that the preventive detention of the detenu is necessary should be supplied to him. Similarly, the Division Bench of this Court in `Smt. Suhasini Krishna Patil Vs. Shri. R.S. Sharma and Ors.' 2004 ALL MR (Cri.) 908, has also held that non-furnishing of each and every document would not vitiate the detention order but only non-furnishing of a vital document would vitiate the detention order. 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 of making an effective representation was affected. The incamera statement of witness B did not disclose the names of the two associates of the 12 cr-wp-176-11.doc petitioner and therefore non-providing or non-supply of the names of the associates of the petitioner would not also vitiate the detention order. In the grounds of detention as a preface to the grounds a reference is made in paragraph 2 and other paragraphs which are a preface to the grounds of detention that the petitioner had formed a gang of like minded criminals from certain localities. The failure of authorities therefore to provide the details including the name of the leader of the gang also would not vitiate the detention order. Since the copies of the first information report were supplied to the detenu and the detenu was aware about the place/area of the alleged commission of the offence failure of the authorities to provide that information to the detenu also would not vitiate the detention order. 13 Thus after giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, we are of the opinion that there is no merit in the petition involving the challenge to the detention order and consequently, this petition being without merit is dismissed with no order as to costs. [ N. D. DESHPANDE, J ] [ P.V. HARDAS, J ] 13