1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 642 OF 2008 Ashok Babu Kanchikurve @ ) Ashok Makadwala, aged 28 ) years, resident of Block No.7, ) D/12, New Transit Camp, ) Rajiv Gandhi Nagar, 90 Feet ) Road, Dharavi, Mumbai – ) 400 017, previously lodged in ) Nashik Road Central Prison, ) Nasik, now at present lodged ) in Thane Central Prison, ) Thane, Maharashtra. ) ... ..... Petitioner. Versus 1) D. N. Jadhav ) Ex-Commissioner of Police, ) Brihan Mumbai (now ) retired) ... .... ) 2) The Commissioner of Police) Brihanmumbai, Office ) of Commissioner of Police, ) Mumbai Police Head ) Quarters, Opp. Crawford ) Market, Mumbai-400 001. ) 3) The State of Maharashtra ) 4) The Superintendent, ) Nasik Road Central Prison ) Nasik Road, Maharashtra. ).. .. ..... Respondents. 2 Mr. K. M. Sangani for the Petitioner. Mrs. A. S. Pai, APP for the State. CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 30TH AUGUST, 2008. ORAL JUDGMENT (Per Bilal Nazki,J.): This is again a reflection of the sorry affairs of the State in which the State treats the sovereign liberty of the people, particularly, their right to live. They are depriving of their liberty without proper application of mind and without even knowing the para meters of law in which a person can be deprived of his liberties, particularly, when a person is detained without a charge or a trial. 2. The petitioner has been detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short “M.P.D.A. Act”) by an order of the Detaining Authority, who unfortunately is the Commissioner of Police. This Court has always had a view that such power should not be given to the Police Officers at least who are the part of the law and order machinery and who always have an interest which may be detrimental to the civil liberties of the people. 3 3. The Commissioner of Police passed an order on 10th September, 2007. The grounds of detention have also been framed and served on the detenu, who is in custody and serving term of detention with effect from 23rd March, 2007. Various grounds have been taken in the petition for quashing the detention. 4. Learned Counsel for the petitioner has submitted that there was seven months delay in passing the order and 3 F.I.R.s were referred to in the grounds of detention, whereas he was supplied the material only with regard to the two offences. He also submitted that the petitioner was in custody and was released on bail on 27th July, 2007, but till 10th September, 2007 no detention order was passed and if there was any activity being done which was prejudicial to the interest of the State the link had already got snapped. The Commissioner of Police also relied on two in-camera statements which were curiously recorded on 21st July, 2007, according to the learned Counsel for the petitioner, only to make a ground for detention of the petitioner. 5. Before addressing the grounds it is usual to examine the record pertaining to detention in habeas corpus petition. The proposal is initiated for detention of the detenu on 2nd August, 2007 by Senior Inspector of Police, L. T. Marg Police Station, Mumbai. He sent this proposal to the Commissioner of Police in which he referred to 5 4 cases as criminal record of the detenu. About 3 cases he stated that the detenu was acquitted in those 3 cases and in 2 cases he stated that trial was pending. In addition to these cases, he referred to other 2 cases, which were being investigated. 6. We have not been able to find from the file nor the Public Prosecutor has been able to show us as to whether this proposal of 2nd August, 2007 went to the Commissioner directly or not but what we have seen from the file is that this proposal went to Senior Inspector of Police, P.C.B., C.I.D., Mumbai, who on 9th August, 2007 prepared a report, after scrutinising the material furnished by the Initiating Authority i.e. the Senior Inspector of Police, L. T. Marg Police Station. He was of the opinion that this material was not sufficient for action under the M.P.D.A. Act. Nobody scrutinised the report of the Senior Inspector of Police, P.C.B., C.I.D. and it was being treated like any other usual file and not a file in which the Detaining Authority is supposed to apply his own mind and then record satisfaction that the person needs to be detained. It went to D.C.P. The D.C.P. wrote the following note: "P.D. Has seven offences to his discredit. Grounds are sufficient to say that P.D. Is dangerous and his activities are prejudicial to the maintenance of public order. This is fit case for action under MPDA.” Again in usual fashion it goes to the Addl. Commissioner of Police and he 5 wrote on 13th August, 2007 “Submitted in agreement”. Then ultimately, the Ultimate Authority, who was supposed to scrutinise the material himself wrote on 16th August, 2007 as under: Perused. I am satisfied that it is a fit case to proceed under the provisions of M.P.D.A, 1981. Put up orders accordingly”. 7. What was before the Commissioner of Police, that he was satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order in which detention had to be ordered was the report of the D.C.P. who stated that there were 7 offences to the “discredit” of the detenu. Whereas, his two officers, namely, the Senior Inspector of Police, L. T. Marg Police Station had stated that 5 cases had already been decided and the Senior Inspector of Police, P.C.B., C.I.D., Mumbai stated that this was a weak case as there was no foundation for action under M.P.D.A. People cannot be allowed to be detained without trial at the whims of the Police Officers. 8. Since there had been no foundation or grounds at all before the Commissioner of Police, who has passed the order of detention, this order of detention cannot be sustained and the same requires to be quashed. 9. In view of the above, the impugned order of detention is quashed. The detenu be released forthwith, if not required in any other case. 10. Rule made absolute in terms aforesaid. 6 11. Writ petition is, accordingly, allowed. The costs of Rs.5,000/- shall be paid. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)