- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 298 OF 2008 Shri Abdul Rehma n Abdul Wahid ) Siddiqui @ Rehma n Kashmiri, Age ) 31 years, Residing at Bldg. No. 23,) Room No. 12, Opp. Mogal Palace ) Hotel, Pydhonie, Mumbai- 400 009 ) (At present detained at Central ) Petitioner Prison, Thane). ) (Detenu) Vs. 1. Shri D. N. Jad h av, ) Commissioner of Police, ) Brihan Mumbai. ) 2. The State of Mahar a s h t r a ) [Through the Secretary ) Home Depart me n t (Spl.) ] ) Mantralaya, Mumbai. ) 3. The Superinte n d e n t, ) Thane Central Prison, Thane ) 4. Special Advisory Board, C/o. ) Home Dept., Mantralaya ) Mumbai. ) Responde nt s - 2 - Mr. U. N. Tripathi, for the petitioner. Mr. D. S. Mhaisp u r k a r , APP for the State. CORAM : BILAL NAZKI, & A. A. KUMBHKONI, J J. DATE : JULY 29 , 2008. ORAL JUDGMENT ( PER : A. A. KUMBHKONI, J.) 1. This is a habeas corpus petition filed under Article 226 of the Constitu tion of India by a deten u who is presently detained at Central Prison Thane. This petition questions validity of order of detention being D.O. No. 123 / P CB / D P / Z o n e- II/2007 dated 23 rd October 2007 (hereinafter referred to as ''the impugned order'' for the sake of brevity), issued under section 3(1) of the Mahar as h t r a Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as ''the said Act'' for the sake of brevity), passed against the deten u by the Commissioner of Police, Brihan Mumbai. 2. On 7 th September 2007 Senior Inspector of Police of Pydhonie Police Station, Mumbai submitted a proposal for detention of the deten u under the said Act. The detaining - 3 - authorities considered and scrutinized the material placed before it and upon its subjective satisfaction that the activities of the deten u were prejudicial to the maintena n ce of the public order and that the deten u was dangerous person within the meaning of the said Act and further that it was necess ary to detain the deten u under the said Act with a view to prevent him from acting in any man n er, prejudicial to the mainte n a n ce of public order, has issued the impugned order dated 23 rd October 2007. The impugned order has been served on the detenu on 8 th December 2007. The State Govern me n t was pleased to issue an order comm u nica ting the approval of the impugned order, on 26 th October 2007 and was further pleased to confirm the impugned order on 25 th Jan u a ry 2008. 3. The impugned order has been issued by the Detaining Authority, on the basis of material placed before it, which pertained to in camera statement s of two witnesse s dated 26 th August and 28 th August 2007 as also following two C.R.s - (i) C.R. No. 107 of 2007 registered at Colaba Police Station against the deten u and his associates, under section 399 - 4 - of I.P.C., read with section 3, 25, 27 of Arms Act, read with section 37(1) of the Bombay Police Act. (ii) C.R. No. 143 / 2 0 0 7 registered with Pydhonie Police Station against the deten u and his associates under section 394 read with section 34 of Indian Penal Code. 4. Instead of collectively setting out herein the argume nt s advanced on behalf of the petitioner and replied by the responde n t s , we will prefer to deal with the same point wise as set out hereu n der. 5. In as much as C.R. No. 143 of 2007 aforesaid is concerned, thoug h the FIR in that regard has been registered on 24 th July, 2007, the incident involved therein occurred on 17 th July, 2007. It is the case of the complaina n t therein that due to the fear of retaliation at the hands of the deten u and his associates, the complaina n t did not report the matter to the police. According to the complaina n t therein, a newspa per dated 23 rd July, 2007 carried the news of the fact that the deten u and his associates were arrested by Colaba Police Station, in relation to an incident that occurred on 25 th July, 2007. After the fact of arrest of - 5 - the deten u became known to the complaina n t therein, the complain a n t mustered the courage and decided to lodge the complaint in relation to the incident that occurred on 17 th July, 2007. Accordingly, the complaint has been registered on 24 th July, 2007 as C.R. No. 143 of 2007. 6. The narration of incident by the complaina n t who has filed the aforesaid complaint dated 24 th July, 2007 in short as is set out in the impugned order itself, which is relevant for our purpose is as under- . The complaina n t has a godown- cum- office at Pydhonie. On 17 th July, 2007 a motor tempo bearing registration No. MH- 04 C 0231 had come to the godown of the Complaina nt from Kurla with iron pipes which were required for the purpose of the busines s of the complaina n t. The complaina n t with the help of his workers was unloading these iron pipes from the motor tempo in his godown. At 20.00 Hrs., when the motor tempo was about to be driven back to Kurla, it was found that the engine thereof was not starting. Therefore the complaina n t and his servants started pus hing the motor tempo in an attempt to start its engine. In the process, the motor tempo pus he d a motor cycle which was parked - 6 - by the side of the road. Resulta ntly, the motor cycle fell down. The complain a n t went near the motor cycle to lift the same and to place it back as it was before the motor tempo knocked it down, while the same was being pushed by the complaina n t and his servants. At that time, the person who had parked the said motor cycle abused the petitioner and his associates. Hearing these abuses the deten u along with his associates rus hed at the complain a n t. The associates of the deten u were armed with stick and chopper. One of the associates of the deten u assa ulted the complain a n t with stick on his right side ear and the complaina n t sustained injuries and also started bleeding. The deten u snatc hed the gold chain of the complaina n t, weighing 4.5 Tolas, valued at Rs.50,000 / - from the neck of the complaina n t. . The father of the complaina n t after hearing the commotion came out of his office and questioned the complaina n t and his associates. The associates of the complaina n t at the point of chopper threate n ed the father of the complaina n t and assa ulted him with fist blows on his left ear. The father of the complaina nt also sustained injuries and started bleeding. - 7 - . The complaina n t and his father shouted loudly for help when the deten u and his associates at the pointed of weapons threate ned the public not to come forward to help the complaina nt and his father. Therefore, the people ran helter- skelter. Shop keepers pulled down the shutter s of their shops and an atmosp h ere of fear and terror was created by the deten u and his associates, who then went away. 7. The deten u with the permission of the Court on 1st August 2007 along with his associate was taken charge by Pydhonie Police Station and was arrested in this C. R. No. 143 of 2007 on tran sfer warra nt and was thereafter produced before the learned Additional Chief Metropolitan Magistrate, 2nd Court Mazgaon from time to time, on 2 nd August 2007, 9 th August 2007 and 13 th August 2007. On each of these dates the rema nd applications were filed on behalf of the police. 8. In the grounds set out in the impugned order, after quoting the nature of the aforesaid complaint, it is stated thus - ''5(a)(xi) On 02.08.2007, when you were placed for reman d before the Ld. Addl. Ch. M.M. 2 nd Court, Mazgaon, you were remanded into police custody until 09- 08- 2007. - 8 - On 09- 08- 2007 you were produced before the Ld. Court for reman d, you were remande d in to police custody until 13.08.200 7. On 13.08.2007 you were produced before the Ld. Court you were remande d into judicial custody till 27.08.200 7. Thereafter your judicial custody remand was extended from time to time.'' 9. Admittedly, alongwith the order of detention, grounds of detention and docume nt s / p a p e r s with Hindi translation of said papers were served on the deten u on 8 th December 2007. The copies of the aforesaid rema nd applications were handed over to the deten u along with their Hindi translation at page num ber s 419 to 470 as part of compilation of docume nt s which was served on the deten u alongwith ground s of detention on 1 st December 2007. 10. The learned counsel appearing on behalf of the Petitioner brought to our notice the original compilation of docume nt s served on the petitioner and particularly pages num ber 454 an 455 of these papers which was a part of the copies of the aforesaid reman d applications and demonstr a ted that large portions thereof were illegible. On perus al of these docume nt s we are satisfied that the grievance made out by the deten u in this regard is true and - 9 - correct. 11. In the sub mission of the learned counsel of the Petitioner non- supply of the legible copies of these docume nt s has hampered the right of the Petitioner to make effective represent a tion in terms of the Article 22(5) of the Constitution and that therefore the impugned order is uns u s t ai n a ble. 12. In as much as illegible portion of the rema nd applications are concerned, it was contended by the learned APP that reference to the rema nd application in the impugned order was made, only to complete the narration of events and that reman d applications were not the basic docume nt s on which the Detaining Authority had arrived at its subjective satisfaction for issu a n ce of the impugned order. On this ground also, it is contended that even if illegible portions of the reman d applications were there in the docume nt s supplied to the deten u, the same has not caused any prejudice, whatsoever, to the rights of the deten u in any man n er whatever. 13. In this regard, the learned APP relied on the observations - 10 - made by the Division Bench of this Court in the case of Rekha Umesh Shetti Vs. State of Maharas h t r a & Ors . [2007(2) Bom.C.R. (Cri.) 663], the relevant portion of which reads thus - ''8. So far as the remand proceedings are concerned, Mr. Mhaispurkar submitted that the remand proceedings cannot be called vital and material documents. He submitted that remand proceedings only contain the allegations against the detenu. In the facts of the case where the other relevant material was before the Detaining Authority indicating the nature of the prejudicial activity in which the detenu is involved, the remand proceedings cannot be called vital and material documents.'' ''18. In our opinion, in the circumstances of the case remand application cannot be called a vital document because in the grounds of detention the Detaining Authority has given the gist of the case against the detenu. The Detaining Authority has obviously culled it out from the statement s and documents placed before her, copies of which have been given to the detenu. It is common knowledge that remand application contains the gist of the prosecution case and seek s custody of the accused. Whether a case for bail exists - 11 - or not can be made out from the made out from the material placed before the Detaining Authority. Therefor e, non place m e n t of rema n d applic a t i o n before the Detainin g Authori t y and non suppl y thereof to the dete nu does not vitia t e the deten t i o n order.'' (Empha sis by us) 14. It is pertinent to note that the aforesaid extracts of the judgmen t and the observations made by the Division Bench itself clearly demons tr a te s that the facts of our case and the case dealt with by the Division Bench are distinguis h a ble, in much as in the case with which the Division Bench had occasion to deal with, the remand applications were not placed before the Detaining Authority itself and where additionally not supplied to the deten u. As against this in our present case the reman d applications, were not only very much there before the Detaining Authority but the copies thereof were even supplied to the deten u along with the impugned order and the grounds of detention. Obviously therefore, in our view the aforesaid judgmen t of the Division Bench is not applicable to our case. 15. In our view non supply of legible docume nt or part - 12 - thereof amou n t s to non supply of such docume nt itself or non- supply of such part of the docume n t which is not legible as the case may be. In other words, non supply of a legible copy of the concerned docume n t is same as non supply of the concerned docu me n t itself. Conseque n tly, whatever conseque nce s follow on accou n t of non supply of the concerned document will also follow in those cases where illegible copies of such docume nt s in full or in part are supplied to the deten u. In our view, supply of docu me n t has to be meaningful enabling the deten u to read the entire docu me n t and under s t a n d contents therefore. 16. Obviously, the conseque nce s of supply of illegible docu me n t(s) in full or part will depend upon the question as to whether such non supply has adversely affected right of deten u to make an effective represent a tion against the order of detention under Art. 22(5) of the Constitution of India. 17. In as much illegible portion of remand applications are concerned, the aforesaid extracted portion of the ground s of detention will demonstr ate that the Detaining Authority in the groun d s of detention has only stated that after such rema nd - 13 - applications were filed, the judicial custody remand of the deten u was extended immediately by the learned Additional Chief Metropolitan Magistrate, 2 nd Court, Mazgaon. It further states that the bail application filed on behalf of the deten u was also rejected on 1 st December 2007 and that the bail was granted to the deten u much thereafter on 28 th September 2007, which was availed by the deten u only on 6 th October, 2007. 18. Thus, from the facts and circum st a n c e s of the case, it is clear that contents of the rema nd applications were not at all considered by the Detaining Authority, as one of the basis for issuing the impugned order. These docume nt s have not in any man n er influenced the subjective satisfaction of the detaining authority in issu a nce of the impugned order. If that be so, certainly the deten u was not really entitled to the copy of these docu me n t s i.e. remand applications, which were enclosed along with compilation of docume nt s at page 419 to 470 supplied to the deten u along with the impugned order. Therefore non- supply of legible copies of such remand applications or part thereof in the facts and circu m s t a n ce s of this case, has not at all adversely affected the rights of the deten u in any manner whatsoever, much - 14 - less in making an effective represent ation contemplated by Article 22(5) of the Constitu tion. 19. In this regard the learned counsel for the petitioner relied on the judgment delivered by the Supreme Court reported in 1990 (Supp) Supreme Court Cases the relevant portion of which reads thu s- ''3. It appears that the appellant had asked for certain copies of the documents which admittedly were there with the respondent- Union of India. Copies of the documents were supplied, but the same were not legible. This position is also apparent. It is not neces sary in the facts of this case to go into the question whether these documents were relevant or material. 4. In view of the fact that the copies of the document were, in fact, supplied at the request of the appellant, but the copies supplied were illegible we are of the opinion, that the safeguard s provided by the Constitution have not been followed... 20. In view of our conclusion that in view of the facts and - 15 - circu ms t a n ce s of this case the rema nd applications were not or are not relevant docu me nt s, the aforesaid judgment of the Supreme Court can be of no assista nce to the petitioner in furthering his case. Moreover even on facts the same is clearly distinguis h a ble. 21. In the grounds set out in the impugned detention order, after quoting the nature of the aforesaid complaint, it is stated thu s - ''The complainant then took treatment in Kothari Hospital, C. P. Tank, Mumbai. His father went to E.N.T. Specialist Dr. Parekh at Andheri for treatment. Due to fear of retaliation at the hands of you and your associates, he did not report the matter at police station'' ''5(a)(x) The medical certificate dated 17.07.2007 of the injured complainant Shri Sanjay Pitambarlal Danania indicating the injuries caused to him, issued by Dr. Parekh was obtained by police''. 22. A copy of medical certificate dated 17 th July, 2007 (along with its Hindi translation), in regard to the aforesaid complaina n t, Mr. Sanjay Pitamb arlal Dana nia was included in these papers. - 16 - However, admittedly, medico legal certificate in regard to the father of the complaina n t form C. R. No. 143 of 2007 showing that the father of the complaina n t went to E.N.T. Specialist Dr. Parekh, at Andheri for treatme nt, was not supplied to the deten u. 23. The lerned counsel appearing on behalf of the Petitioner contended that the deten u was admittedly not supplied with the copy of medico legal certificate in respect of the father of the complain a n t who is supposed to have taken treatment from E.N.T. Specialist Dr. Parekh at Andheri. In his submission the non supply of such a medico legal certificate has adversely affected the deten u' s right to make an effective represe nt ation against the impugned order of detention, under Art. 22(5) of the Constitution of India. 24. He further pointed out that in as much as the medico legal certificate relating to the complaina n t is concerned, only part of the same along with its Hindi translation has been supplied to the deten u . He brought to our notice that the said medico legal certificate dated 17 th July, 2007 is written on one piece of paper but on both sides of paper. What has been supplied to the deten u - 17 - is only front page along with its Hindi translation. In other words, the rear side of the certificate along with its translation has not been supplied to the deten u. He therefore, submitted that this amou n t s to non supply of crucial docume nt, and therefore, fatal to the case of Respon de nt. 25. The learned counsel in support of his submis sions relied on the judgmen t s of the Supre me Court, delivered in the following cases- i Powana m m al Vs. State of T. N. & Anr. , [ 1999 Supreme Court Cases (Cri) 231 ]; i Manjit Singh Grewal @ Gogi Vs. Union of India , [1990 (Supp) Supre me Court Cases 59]. 26. On the contrary, the learned Assistant Public Prosecutor contended that though the copy of medical certificate in respect of the injuries suffered by the father of the complaina n t were not forwarded to the Detaining Authority by the sponsoring authority, there was ample material available before the Detaining Authority to satisfy itself about the truthf ulnes s of the incident dated 17th July, 2007, as well as involvement of the detenu therein. It was - 18 - therefore, contended that the medico legal certificate in relation to the father of the complaina nt from C.R. No. 143 of 2007 was not a vital docu me n t and that it cannot be said that for want of supply of its copy to the deten u, the deten u was deprived from making effective represen t a tion under Art. 22(5) of the Constitution of India. 27. It is further contended by the learned APP that in as much as the medico legal certificate pertaining to the complaina n t is concerned, the portion of the same which dealt with injuries caused to the complaina n t by the deten u and his associates was supplied to the deten u along with its Hindi translation. In his sub mis sion the rear side of this certificate contained only the treatme n t that was prescribed to the complaina n t, and therefore this rear part of the certificate was not vital portion of the medico legal certificate. According to him therefore for non supply of such rear portion it can be said that the deten u was deprived from making effective represent ation under Art. 22(5) of the Constitu tion of India. 28. The learned counsel appearing on behalf of the - 19 - petitioner relied on the judgment of the Supreme Court in the case of Powan am m al Vs. State of T.N. & Anr. [1999 Supreme Court Cases (Cri) 231], paragrap h 9 thereof, which is relevant for our purpose, reads thu s- ''9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non- supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continue detention, the detenu need not show that any prejudice is caused to him. This is because the non supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against