1 Cri. W.P.No. 49 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No.49 Of 2011 * Vilas Shamrao Goyar @ Chota Papa, Age 31 years, Occupation : Business, R/o. Vishwa Karma Nagar, Dhule. .. Petitioner. Versus 1) The State of Maharashtra, Through Under Secretary, Home Department (Special), Mantralaya, Mumbai. 2) The District Magistrate, Dhule, Taluka & District Dhule. 3) The Superintendent of Police, Dhule, Taluka & District Dhule. 4) The Sub Divisional Police Officer, Dhule City Region, Dhule, Taluka & District Dhule. .. Respondents. -------- Shri. Amol S. Sawant, Advocate for petitioner. Smt. R.K. Ladda, Additional Public Prosecutor, for respondent Nos.1 to 4. -------- CORAM: NARESH H PATIL & A.V. POTDAR, JJ. DATE: 10th MARCH 2011 2 Cri. W.P.No. 49 of 2011 ORAL JUDGMENT (Per Naresh H Patil, J.) : 1) Rule, rule made returnable forthwith. By consent taken up for final disposal. 2) The petitioner challenges the order dated 9th November 2010 issued by Government of Maharashtra through Under Secretary, Home Department (Special) under section 12(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons And Video Pirates Act, 1981 and the judgment and order dated 17-9-2010 passed by the District Magistrate, Dhule under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons And Video Pirates Act, 1981 (for short, "the Act of 1981"), directing continuation of the detention of the petitioner - Vilas Shamrao Goyar for a period of one year from the date of detention of the petitioner. 3) The petitioner contends that a proposal came to be forwarded by the Police Inspector, Azadnagar Police 3 Cri. W.P.No. 49 of 2011 Station Dhule in respect of detention of the petitioner under the provisions of the Act of 1981. In pursuance to the said proposal in-camera statements of four persons were recorded on 26-6-2010 and on 27-6-2010 by the police. The statements were verified by respondent No.4 - Sub Divisional Police Officer. A report came to be submitted to respondent No.3 - Superintendent of Police Dhule on 7-7-2010. A copy of proposal was addressed to the District Magistrate, Dhule, respondent No.2 herein, through respondent No.3 - Superintendent of Police. The proposal forwarded by the police to the authorities concerned refer to nine cases which were registered against the petitioner at that time. The petitioner contends that, a secret report bearing No.2/2010 was forwarded to the District Magistrate Dhule on 26-7-2010 with a recommendation for issuance of order of detention for a period of one year. 4) Respondent No.2 passed an order on 17-9-2010 under Section 3(2) of the Act of 1981 directing petitioner to be detained under the provisions of the Act of 1981. The petitioner was accordingly detained on 17-9-2010. The 4 Cri. W.P.No. 49 of 2011 petitioner was served with the grounds of detention along with the order. The petitioner further contends that in view of Section 3(3) of the Act of 1981, the respondent No.1 approved the detention order issued by the District Magistrate,Dhule on 28th September 2010. An opportunity to submit representation was provided to the petitioner against the order of detention to the detaining authority i.e. the District Magistrate, Dhule. 5) The petitioner submitted a representation under Section 10 of the Act of 1981 addressed to the Secretary, Advisory Board and prayed for cancellation of the detention order. 6) The detention order came to be confirmed on 9th September 2010 and it was directed that detention of the petitioner to be continued for a period of one year from the date of his detention. The order was passed under section 12(1) of the Act, 1981 by the respondent No.1. 7) Learned counsel Shri. Sawant appearing for the petitioner has raised substantially following grounds : 5 Cri. W.P.No. 49 of 2011 (A) The orders in respect of criminal cases wherein bail was granted and wherein the petitioner was acquitted from criminal cases were not placed before the detaining authority; (B) The in-camera statements recorded by police were not verified by the Sub Divisional Police Officer by conducting proper enquiry; (C) There is delay in passing detention order considering the fact that the in-camera statements of four persons were recorded in the month of June 2010; (D) There was delay in deciding representation of the petitioner filed with the State Government against the order of detention; (E) There was non application of mind on the part of detaining authority and the State Government in considering the petitioner's objections; (F) The affiant - Balasaheb Bajirao Waychale, Police Sub Inspector, Police Station Azadnagar who filed affidavit-in-reply did not deal with the processing of the file / proposal till it reached its final stage wherein the State Government confirmed the order of detention. 8) The learned counsel for the petitioner has placed reliance on the following reported judgments in support of his contentions : 6 Cri. W.P.No. 49 of 2011 Anandi Laxman Patil v. R.H. Mendonca, Commissioner of Police, Greater Bombay, 2000 Bom.C.R. (Cri.) 35. The Division Bench observed in paragraph 8 thus : "8. Since the bail application was a vital document and was not placed before the Detaining Authority and its copy was not supplied to the detenu the impugned detention order is vitiated on a dual count: A. On account of non-placement of a vital document before the Detaining Authority his subjective satisfaction to detain the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No.LV of 1981) (Amendment 1996) has been impaired on the vice of non-application of mind. [In this connection it will be pertinent to refer to para 13 of the decision of the Supreme Court reported in A.I.R. 1989 S.C. 364 (Ayya alias Ayub v. State of U.P. and another). In the said paragraph the Supreme Court has observed thus : "..... If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention .... ]" B. Since the bail application was a vital document its non-supply to the detenu has deprived the detenu of his right to prefer an effective representation under Article 22 (5) of the Constitution of India." Meer Mohamadali @ Baba s/o Meer Tojoddin v. S.B. Kulkarni, 2000 ALL MR (Cri) 511. The Division Bench has observed in paragraph 10 as under : 7 Cri. W.P.No. 49 of 2011 "10. We fail to understand that how a document which is vital to consider whether it is a fit case to pass an order of detention cannot be taken into consideration by the Commissioner of Police especially when he has specifically made reference that the detenu was released on bail by the Court. The learned Counsel for the petitioner has rightly argued that if the order releasing the detenu on bail had been before the Commissioner of Police, he would have formed some different opinion than the opinion which is formed by him. for the purpose of substantive satisfaction of the authority, all the relevant documents must be there and the order releasing on bail is one of the most relevant document. We find much force in the contention of the learned Counsel for the petitioner. The order of detention is passed without making any reference to the application for bail and the order releasing the detenu on bail, passed by the learned Additional Sessions Judge." Anil @ Antya Shriram Jadhav v. State of Maharashtra, 2008 (2) Bom.C.R. (Cri.) 266. The Division Bench has observed in paragraph 10 as under : "10. We have gone through all the affidavits filed by the respondents and we find that from 17.8.2007 till 1.10.2007 except for a statement that after recording of in-camera statements, th proposal was forwarded to the 2nd respondent on 22.8.2007, there is absolutely no explanation for the period from 22.8.2007 till 1.10.2007. All the affidavits in reply are totally silent on this issue. In the absence of any explanation for the delay that is caused between the said period, we will have to hold that the said delay is fatal and the order of detention must stand vitiated. We propose to rely upon para 14 of the decision of Supreme Court in Pradeep Nilknath Paturkar Vs. S. Ramamurti & ors., A.I.R. 1994 SC 656, which read thus : "Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order." 8 Cri. W.P.No. 49 of 2011 We also propose to follow the Division Bench decision of this Court in Sanjay Balaram Kirale v. State of Maharashtra 2001 Cr.I.J. 3779, Paras 7 and 8 thereof are as under : "We refer to the decision of the Apex Court in case of Smt. Hemlata Kantilal Shah Vs. State of Maharashtra, A.I.R. 1982 S.C. 8. The Apex Court has held that th delay ipso facto in passing the order of detention after the incident 13 not fatal to the detention of a person for in certain cases delay may be unavoidable or reasonable. What is required by law is that the delay must be specifically explained by the Detaining Authority. We also refer to the decision of the Supreme Court in Pradeep Nilkanth Paturkar v. C.S. Ramamurti reported in J.T. (1992) 3 S.C. 261 : 1994 Cri.L.J. 620 wherein the Apex Court found that when the plea of delay in issuance of the detention order is taken and the delay is not explained, whether short or long, the order should be quashed." We have thus come to the conclusion that in the absence of any explanation for the delay that is caused from 18.8.2007 till 1.10.2007, the order of detention cannot be supported. In the light of the view we have taken, we have no alternative but to allow this petition on this sole ground." Savita Shankar Lokhande v. M.N. Singh, 2001 All MR (Cri) 846. The Division Bench has observed in para 10 thus :- "10. In the present case we have no hesitation in recording that the detaining authority has failed to furnish any satisfactory explanation with respect to delay in issuance of the detention order. As a necessary corollary, we will have to assume that the subjective satisfaction recorded by the Detaining Authority was not genuine and that the live link between the prejudicial activities of the detenu and the rationale of clamping the detention order, which is a draconian action, qua the detenu, cannot stand the test of judicial scrutiny. If we 9 Cri. W.P.No. 49 of 2011 were not to quash such a detention order, the detention under the said order would cease to be preventive but assume the colour of being a punitive action, which cannot be countenanced in law. In the circumstances, we would prefer to quash the impugned detention order. ..... " Wakar Ahmed Siddiqui v. The State of Maharashtra, 1999 ALL MR (Cri) 1572. The Division Bench has observed in paragraphs 10, 14 and 15 as under : "10. We have reflected over the submission canvassed by Mr. Rajiv Patil and we are constrained to observe that we do not find any merit in it. Article 22(5) of The Constitution of India gives the detenu a right to make a representation against a preventive detention order at the earliest opportunity. The Supreme Court in the case of Smt. Shalini Soni Vs. Union of India and other reported in AIR 1981 Supreme Court 431 has held in para 4, in the detenu's right to make a representation at the earliest opportunity, is inherent obligation on the authority to which the representation is made to dispose off the same at the earliest opportunity. The Supreme Court in the case of Harish Pahwa V/s State of U.P. reported in AIR 1981 Supreme Court 1126 in para 3 has held in the contest of the question of delay in the disposal of the representation that :- "It is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu." 10 Cri. W.P.No. 49 of 2011 "14. In the instant case, on account of 6 days delay on the part of the Dy. Chief Minister (Home) in making the delegation to the Additional Chief Secretary (Home) the ratio laid down in AIR 1981 Supreme Court 1126 supra extracted above, in terms that the representation has to be dealt with continuously, has been given a go-by. In the circumstances of the present case, it cannot be said that the representation of the detenu was disposed off at the earliest opportunity as it should have been, in view of the provisions contained in Article 22(5) of The Constitution of India. It would be appropriate to refer to the Division Bench decision of this Court reported in 1998 (6) LJ. 536 Santosh Krishna Tandel v/s Commissioner of Police & anr to which one of us (Vishnu Sahai, J) was a party. In the said case, the file duly processed and scrutinised was submitted to the Dy.Chief Minister (Home) for his consideration on 17-12-1997 and on 24-12-1997, he delegated his powers to the Additional Chief Secretary (Home) who, on the said date rejected the detenu's representation. This Court held that the period of one week's time, taken by the Dy. Chief Minister to make a delegation was unduly wrong and had resulted in the representation of the detenu not being disposed off at the earliest opportunity. Consequently, it held the detenu's continued detention vitiated in law and quashed the impugned detention order. "15. It should be borne in mind that preventive detention is a draconian piece of legislation. The law may permit it when the prejudicial activities of a person cannot be curbed under the ordinary law of land but, it should always be borne in mind that strict procedural safeguards guaranteed by Article 22(5) of the Constitution of India, must be adhered to by the authorities and one such safeguard is the right of the detenu to make a representation at the earliest opportunity in which right, as held in AIR 1981 Supreme Court 431 supra, is implicit an obligation on the authority to which the representation is preferred to dispose off the same at the earliest opportunity." 11 Cri. W.P.No. 49 of 2011 Shakuntala Motiram Patil v. K.S. Shinde, 1996 (3) ALL MR 422. The Division Bench has observed in paragraph 9 of the report thus :- "9. In the facts and circumstances of the case we are of the clear opinion that the representation was carelessly not attended for 10 days and it is time that the State Government should remedy the situation. In the facts and circumstances of the case, in our opinion there is absolutely no explanation for the delay of 10 days in consideration of the representation made by the detenu, which clearly infringes the most valuable constitutional right of the detenu under article 22(5) of the Constitution of India i.e. getting his representation considered expeditiously by the State Government, which must result in the continued detention of the detenu becoming unconstitutional." Janardhan Chintaman Bhoir v. State of Maharashtra, 2009 (1) Bom. C.R. (Cri.) 144. The Division Bench has observed in paragraph 13 thus : "13. On perusal of the above observations, it would appear that the facts in Zabin Salim Hamja Shaikh were almost identical with the facts of the present case. In view of the legal position settled by the Supreme Court and by this Court in number of judgments, it is clear that mere correct recording in in-camera statements of witness is not sufficient. It is necessary that the verifying authority should also find out whether the contents of those statements were really true and then only the verifying authority could certify that the fear in the mind of the witness was genuine. ... ". 12 Cri. W.P.No. 49 of 2011 Anil Damodhar Paunipagar v. State of Maharashtra, 2000 (2) Mh.L.J. 400. The Division Bench has observed in paragraph 11 thus : "11. We will first examine as to whether the impugned order stands vitiated for non-filing of the affidavit by the detaining authority. In Mrs. Tsering Dolkar vs. The Administrator, Union Territory of Delhi and others, AIR 1987 SC 1192 and in the case of Mohinuddin vs. Distt. Magistrate, Beed, AIR 1987 SC 1977, the Apex Court has taken a view that, when the allegation is that there is no application of mind in the making of the preventive detention, the return should come either from the detaining authority or a person who was directly connected with the making of the order and not on the basis of the record of the case as otherwise it would vitiate the order. In return to a rule nisi issued by the Supreme Court or the High Court in a habeas corpus petition, the proper person to file the affidavit is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefor; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or the officer duly authorised under the Rules of Business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters in order to justify the detention order. The authority in Mohinuddin vs. Distt. Magistrate, AIR 1987 SC 1977, was followed by this Court in the case of Rupa Dulichand Khare v. D.M., Jalna, 1990 (1) Mah. LR 307, and the Court found that if the affidavit is not filed by the concerned District Magistrate and it doe snot show any reason as to why the District Magistrate who has passed the order cannot file his affidavit and if in the return the authority fails to explain the subjective satisfaction which is required for passing the order of detention, the order would stand vitiated. As pointed out to us by the learned A.P.P., this view of the Apex Court in the two cases i.e. Mrs. Tsering Dolkar and Mohinuddin (cited supra) has now changed and in the 13 Cri. W.P.No. 49 of 2011 recent decision of the Hon'ble Supreme Court viz. in Madan Lal Anand vs. Union of India, AIR 1990 SC 176 and Smt. Victoria Fernandes v. Lalmal Sawma, AIR 1992 SC 687, the Apex Court is of the view that merely because the detaining authority has not sworn the affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention and unless there are allegations that the order is tainted with mala fide or extraneous consideration, counter affidavit of authorities other than the authority passing the order of detention can be taken into consideration. ...... " 9) The learned counsel for the petitioner submitted that, in case the orders of bail and the judgments and orders of acquittal of the petitioner in respect of criminal cases were placed before the authority, consideration of the authorities could have been different while assessing the proposal forwarded by the Police Inspector. In the light of the nature of charges and allegations made by the State authorities against the petitioner for detaining him, the learned counsel submitted that, the charges and the allegations for detaining him, on its face are not sufficient to detain the petitioner. The order of detention is a drastic step which curbs freedom of a person and, therefore, the authorities are required to be absolutely vigilant and alive to the facts of the case, the procedure to be followed so that the constitutional guarantee enunciated under Article 14 Cri. W.P.No. 49 of 2011 22(5) of the Constitution of India is not violated. 10) The learned counsel for the petitioner submits that the respondents ought to have decided the representation within reasonable time. In this case, the authorities took 26 days in deciding the representation and in absence of any explanation on their part as to why the authorities concerned took 26 days time in deciding representation the entire proceedings initiated against the petitioner got vitiated. Even the respondents ought to have explained the reasons in passing detention order after a gap of near about 3 and half months after the in-camera statements were recorded. The counsel submitted that in the affidavit-in-reply the State has not come out with any explanation in respect of the substantial grounds. In the submission of the counsel, the State has not controverted the grounds raised by the petitioner and in a way contentions of the petitioner have gone unchallenged. 11) The learned Additional Public Prosecutor, Smt. Ladda, placing reliance on the affidavit-in-reply filed by Police Sub Inspector mainly submitted that, the Police Sub 15 Cri. W.P.No. 49 of 2011 Inspector was very much in know of the case and was competent to file affidavit in reply. It is the case of the State that considering the fact that nine criminal cases were filed against the petitioner, and considering his activities the proposal was forwarded by the Police Inspector and after applying mind the order of dentition was passed. 12) We have considered the documents placed before us, the judgments cited supra and the submissions advanced by the learned counsel for the parties. We have perused the affidavit-in-reply filed by the State. We find from paragraphs 1 to 8 of the reply that the affiant Mr. Balasaheb Bajirao Waychale, Police Sub Inspector, Azadnagar Police Station narrated the facts of the case and in para 9 of the reply grounds raised in the rejoinder by the petitioner has been answered in respect of the legibility of the report which was served on the petitioner. In para 11 of the reply, the affiant says that the petitioner was released from two offences which were registered against him and the remaining cases are pending in the Court against the petitioner. 16 Cri. W.P.No. 49 of 2011 13) We do not find specific reply in the affidavit-in- reply filed by the respondent Nos.1 to 4 to the grounds challenging the detention order. We could not get explanation as to why specific reply was not given to the grounds raised by the petitioner challenging the detention order. 14) The respondent - authorities ought to have explained in respect of the time gap which was consumed from the date of in camera recording of the statements of the persons till passing the detention order on 17-9-2010 by the District Magistrate, Dhule. It is not known as to why the entire papers concerning the criminal cases including bail orders, acquittal orders were not placed before the detaining authority. No explanation is forthcoming in respect of the delay in deciding representation filed by the petitioner in respect of the order of detention. There is substance in the contention of the petitioner that, if the entire documents in respect of criminal cases which were pending against the petitioner, which was the basis for passing the detention order, were placed before the detaining authority, then the detaining authority could 17 Cri. W.P.No. 49 of 2011 have been placed in a much better position to understand, appreciate and assess the merits of the proposal forwarded by the Police Inspector against the petitioner. From the record made available to this Court it transpired now that the entire