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.1354 OF 2008 WRIT PETITION NO.1354 OF 2008 WRIT PETITION NO.1354 OF 2008 Smt.Barkat Bibi Shaikh, Age 27 years, an Indian Inhabitant, Residing at 14/101, Fam C.H.S.Ltd., Sector-II, Koperkhairane, Petitioner New Mumbai. (wife of the detenu) Vs. 1. The State of Maharashtra, through the Additional Chief Secretary to the Government of Maharashtra, Home Department, (Special), Mantralaya, Mumbai-32. 2. Anna Dani, the Secretary to the Government of Maharashtra, Home Department(Preventive Detention), Mantralaya, Mumbai-32. 3. The Superintendent of Prison, Nasik Road Central Prison, Nasik Road, Maharashtra. Respondents Mrs.A.M.Z.Ansari for the petitioner. Mrs.A.S.Pai, APP for the respondents. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATED DATED DATED : 30th January, 2009. : 30th January, 2009. : 30th January, 2009. ORAL ORAL ORAL JUDGMENT (Per Bilal Nazki,J.) JUDGMENT (Per Bilal Nazki,J.) JUDGMENT (Per Bilal Nazki,J.) This petition has been filed by the wife of the detenu challenging the order of detention dated 20th May, 2008 passed by the Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department and Detaining Authority which was executed on 22nd May, 2008. ( 2 ) 2. The brief facts are that goods were seized from the detenu as he was accused of smuggling red sanders wood. The goods were seized on 6.1.2008. He was arrested on 7.1.2008. He was bailed out by order of this court dated 3.3.2008. 3. The main ground of attack on the detention order by the learned counsel for the petitioner is that this is a case of non-application of mind by the Detaining Authority. 4. We have heard the learned counsel for the petitioner as well as the learned APP for the State and perused the record. 5. The learned counsel for the petitioner submits that although the petitioner had been arrested on 7.1.2008 there was no movement from respondents to seek detention of the detenu till 13.03.2008. A proposal was made by the Sponsoring Authority to the Detaining Authority. The Detaining Authority took time from 13.03.2008 till 20.05.2008 to pass an order. 6. The counter affidavit filed by the Detaining ( 3 ) Authority makes a very interesting reading. It is stated in the counter affidavit that a proposal for detention of detenu was placed before the Screening Committee and after approval of the Screening Committee and after collecting all the relevant material against the detenu and two other persons, proposal was forwarded to her on 13.03.2008. It contained documents of 2224 pages. Thereafter the material was further generated on two occasions. She submitted that pages 2225 to 2417 were generated on 25.04.2008, pages 2418 to 2473 on 2.05.2008 and pages 2474 to 2499 on 12.05.2008. So, after the material was received by the Detaining Authority and she was satisfied that the detenu has to be detained, she received further generated documents on three occasions. Firstly on 24.05.2008, secondly on 2.05.2008 and thirdly on 12.05.2008. We have seen the File. The File also makes interesting reading, that when the proposal was submitted for the first time on 13.03.2008. While going through the normal bureaucratic ladder, which reaches the Deputy Secretary, he wrote the following note, "P.D. is habitual offender. A leading member of a smuggling syndicate involved in smuggling of Red Sanders under the cover of false documents, Proposal submitted for orders of the D.A. (Detaining Authority). It takes ( 4 ) 8 days to reach from Deputy Secretary to Detaining Authority who is a Principal Secretary and on 7.04.2008 she writes, "Issue detention order". We have not been able to find from this File that at any time, the Detaining Authority having applied her mind to the documents placed before her and given subjective satisfaction that the detenu needed to be detained. Once she decided to detain the detenu and directed that the detention order be issued on 7.4.2008. There is nothing on File to show as to what was being done till 22.04.2008. If the Detaining Authority had decided to issue the order of detention on 7.4.2008, one can imagine that the order will be issued immediately. But it appears from the file that the draft grounds of detention and the grounds of detention as dictated by the Detaining Authority were not ready till 22.04.2008 and the Note was put up before the Detaining Authority that, by normal same hierarchy, with the following Note, "Submitted with reference to the order of the Detaining Authority on P.3/Ns. The draft detention order, and grounds of detention in respect of PD Shri Parvez Mazhar Shaikh as dictated by the Detaining Authority is submitted for approval of the Detaining Authority.". Then, she says on 24.04.2008, "approved". ( 5 ) 7. Even after approval of grounds of detention, draft of the detention order, the order of detention is not passed till again certain other documents are placed before the Detaining Authority which are termed as "further generated documents". The Note on File shows that all documents were received on 25.04.2008 and also on 02.05.2008. It is also mentioned by the Detaining Authority in her affidavit. But there is no explanation as to why documents were not shown to the Detaining Authority till 8th May, 2008. When these documents were put up before the Detaining Authority on 8th May, 2008, she merely stated, "Include in relied upon documents". So there is no indication to show that the grounds of detention were changed. There was some necessity to include these documents in the grounds of detention and even after this order of detention was not issued till 7.5.2008 when a representation was received from the detenu against his proposed order of detention. The Note shows that this representation has been made on 30.04.2008 but it was placed before the Detaining Authority only on 7th May, 2008. She called for a report and rejected the representation on 12.05.2008. Thereafter the order of detention was issued after including certain more documents on 14.05.2008 in the ( 6 ) same fashion in which earlier documents were included to the grounds of detention. 8. The File reveals that there has been total non-application of mind. Therefore, the order of detention cannot be sustained. 9. In the result, the writ petition is allowed. The order of detention bearing No.PSA-1208/CR-82/SPL-3(A) dated 20.5.2008 passed by Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority, Mumbai against Shri Parvez Mazhar Shaikh is quashed and set aside. The detenu-Shri Parvez Mazhar Shaikh 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.)