dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION SIDE CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1220 OF 2008 WRIT PETITION NO.1220 OF 2008 WRIT PETITION NO.1220 OF 2008 Smt.Rupali Pawan Arora Age 23 years, residing at C 6/6/2:1, Rajanigandha Apartment, Sector No.3, C.B.D.Navi Mumbai Petitioner (wife of the detenu) vs. 1. Shri Ramrao Wagh, Commissioner of Police, Navi Mumbai 2. The State of Maharashtra (through the Secretary Home Department(Spl.), Mantralaya, Mumbai. 3. The Superintendent, Nashik Road Central Prison, Nashik. Respondents. Mr.U.N.Tripathi for the petitioner. Mrs.A.S.Pai, APP for the State. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATED DATED DATED : 23rd January, 2009. : 23rd January, 2009. : 23rd January, 2009. ORAL ORAL ORAL JUDGMENT (Per BILAL NAZKI,J.) JUDGMENT (Per BILAL NAZKI,J.) JUDGMENT (Per BILAL NAZKI,J.) Heard the learned counsel for the petitioner as well as the learned APP for the State. 2. This petition has been filed by the wife of the detenu who has been arrested under the orders of detention passed by Respondent no.1 on 29.02.2008 under Section 3 (1) of Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short, ( 2 ) the said Act" ). The order was executed on 16.05.2008 and presently the detenu is lodged in Jail. 3. The learned counsel for the petitioner has drawn our attention to the opening paragraph of the grounds of detention interalia this paragraph reads as under, "I hereby communicate to you the grounds mentioned in paragraph Nos. 4 to 8(2) below on which the detention order has been made by me on this day against you under sub section (1) of section 3 of the said Act. Copies of documents placed before me are enclosed except the names and identifying particulars of the witness/victim in connection with the grounds mentioned in paragraph No. 8 to 8(2) below.". 4. Now in paragraph 4 of the grounds of detention on which the Detaining Authority has relied. He has given 28 cases which, according to him, have been registered in different Police Stations against the detenu. The learned counsel for the petitioner submits that on his own the Detaining Authority relied on these cases, but no material pertaining to these cases was furnished to the detenu and as such prejudice was caused to the detenu to file an effective representation which negates the mandate of Article 22 of the Constitution of India. He submits ( 3 ) that if relevant material on which the Detaining Authority relies while framing subjective opinion is not supplied to the detenu, the detention cannot be sustained and law on this question is well settled. 5. The learned APP does not dispute that if the relevant material taken into consideration by the Detaining Authority is not supplied to the detenu, the detention cannot be sustained. But she submits that the Detaining Authority had only used the material as mentioned in paragraph 4 only as a background material and he had not relied on it for the purposes of arriving at the subjective satisfaction. 6. The Detaining Authority in his affidavit has also stated, "I state that although I have stated in opening para of the grounds of detention that the present order of detention was issued on the basis of the grounds mentioned in para 4 to 8(2) of the grounds of detention, however, the contents of para 4(a) to 5 were by way of preamble to the prejudicial activities of the detenu.". In the same paragraph of the counter affidavit, the Detaining Authority has also stated, "I state that the statements in para 1 of the grounds of detention that the grounds start from para 4 to 8(2) is a typographical mistake and it cannot be said that ( 4 ) for want of supply of the documents about the past activities of the detenu as mentioned in para 4 and 5 of the grounds of detention, deprived the detenu of his right to make effective representation.". 7. The bare reading of first para of grounds of detention shows that the Detaining Authority mentioned the reasons for coming to the subjective satisfaction and for those reasons he has stated that he has taken the grounds mentioned in paragraphs 4 to 8(2) into consideration. Therefore, in his affidavit, he could not deny what he himself emphatically stated in the grounds of detention. If the material mentioned in paragraphs 4 to 8(2) was taken as a background material then it could not be a typographical mistake and if it was a typographical mistake, then the material could not have been taken into consideration even as a background material. 8. For these reasons, we feel that the petitioner has been deprived of his right to make an effective representation and as such the detention cannot be sustained. 9. The learned counsel for the petitioner has relied on the judgment of this case in Criminal Writ Petition ( 5 ) No.1452 of 2001 - Shri Sayyed Nasir Haider v. Shri M.N.Singh & ors. decided on 17.01.2002. In similar facts, the High Court quashed the detention and was of the view that after taking a stand in the grounds of detention, the Detaining Authority was estopped from taking a different stand. Certain other grounds were also urged by the learned counsel for the petitioner, but since we are allowing the petition on the grounds mentioned hereinabove, we do not propose to go to those grounds. 10. In the result, the writ petition is allowed. The order of detention being D.O. No.PD/MPDA/1552/2008 dated 29.02.2008 issued under Section 3(1) of M.P.D.A. Act, 1981 (Amend 1996) by the Commissioner of Police, Navi Mumbai against the detenu-Shri Pawan Kharetilal Arora is quashed and set aside. The detenu-Shri Pawan Kharetilal Arora be released forthwith, if not required in any other case. Rule is made absolute accordingly. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)