1 1 1 IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY IN THE HIGH COURT OF JUDIATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.4 OF 2005 CRIMINAL WRIT PETITION NO.4 OF 2005 CRIMINAL WRIT PETITION NO.4 OF 2005 Istiyak Ahmed Siddiqui an Adult, occupation Taxi-driver resident of 236(A), Kamrajnagar, Gulshan Co-op Hsg. Society, Eastern Express Highway Ghatkopar East, Mumbai 400 077 .. Petitioner. Versus 1. A.N.Roy, Commissioner of Police,to Brihan Mumbai. .. 2. State of Maharashtra .. 3. The Superintendent of Jail Nashik Road Central Prison, Nashik Road. .. 4. The Superintendent of Jail Thane Central Prison, Thane. .. 5. The Secretary Advisory Board (MPDA) Mantralaya, Mumbai .. Respondents. Shri Amin Solkar for the petitioner. Shri S.R.Borulkar P.P. for the respondents. CORAM : SMT.RANJANA DESAI CORAM : SMT.RANJANA DESAI CORAM : SMT.RANJANA DESAI & D.B.BHOSALE, JJ & D.B.BHOSALE, JJ & D.B.BHOSALE, JJ. DATED : 14TH JUNE, 2005 DATED : 14TH JUNE, 2005 DATED : 14TH JUNE, 2005 ORAL JUDGMENT: (PER D.B.BHOSALE, J.) ORAL JUDGMENT: (PER D.B.BHOSALE, J.) ORAL JUDGMENT: (PER D.B.BHOSALE, J.) 1. The petitioner in this writ petition under 2 2 2 Article 226 of the Constitution of India has challenged the order of detention dated 19th August, 2004 passed by the Commissioner of Police, Brihan Mumbai detaining Rashid Ahmed Siddique (for short "the detenu"), by exercising the powers under sub-section 2 of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootlegers, Drug Offenders and Dangerous Persons Act, 1981 (for short "the said Act"), preventing him to continue his illegal and criminal activities as "slumlord" in the area of Kamrajnagar and adjoining area within the jurisdiction of Pant Nagar police station, Brihan Mumbai. This petition is filed by the brother of the detenu. 2. The detention order was passed on 19th August, 2004. It was served and executed on the detenu on 23rd August, 2004. The grounds of detention were served upon him alongwith material in support thereof on 24th August, 2004. Briefly stated the grounds of detention disclose the following material against the detenu: One Mahesh Madan Phad, who was working as Junior Engineer with Brihan Mumbai Municipal Corporation, Ghatkopar, while on round up on 17.4.2004 at 11.00 hours found that a part of the vacant land of the State Government at Kamrajnagar and adjoining areas was 3 3 3 being encroached upon by the detenu and his associates including co-detenu Appu Ahmed Siddiqui. They were unauthorisedly filling up low lying area and making foundation to build huts therein illegally. Therefore, Mahesh Phad referred the matter to his superiors and lodged a complaint at Pantnagar police station under section 52, 43 of the Maharashtra Regional and Town Planning Act, 1966 (for short "the MRTP Act"). In pursuance thereof Pantnagar police station registered a crime vide L.A.C. No.7 of 2004 and carried out further investigation. On 24.4.2004, the police interrogated the detenu in which he admitted his guilt. The statements of Ratnakar Ramchandra Jamburgekar and Shridhar Venktesh Choudhary were also recorded. On 25.4.2004 the detenu filed a bail application bearing No.22 of 2004 for grant of bail in L.A.C. No.7 of 2004. On 29.4.2004 the detenu was ordered to be released on bail and he availed the bail facility on 29.4.2004. The detaining authority further relied upon in-camera statements of witnesses "A" to "E". A perusal of the statements of all the witnesses reveal that the detenu and his accessories indulge in grabbing empty land of the government and construct huts thereon illegally at Kamrajnagar and adjoining areas thereto for sole purpose of selling them to 4 4 4 needy people. It further reveals that the detenu had constructed several illegal huts and sold them to ignorant buyers and thus amassed huge wealth. The specific instances have also been quoted by all the witnesses stating about illegal activities of the detenu and his accessories which consists of extortion of amounts from the witnesses, mercilessly beating them for getting huts vacated, use of deadly weapons such as knives, choppers and swords against the person who fail to pay cost of huts and their forcible removal from the hut and throwing their belongings out of the occupied hut. etc. On the basis of the aforestated activities of the detenu and the material supplied in support thereof by the sponsoring authority, the detaining authority recorded its subjective satisfaction that his activities fall within the meaning of the definition of "slumlord" under sub-section (f) of section 2 of the said Act. The detaining authority found that the acts of the detenu are causing and are calculated to cause harm and a feeling of insecurity amongst the people residing over there and his activities are prejudicial to maintenance of public order of the said areas of Brihan Mumbai. It was further found by the detaining authority that the activities of the detenu were causing loss of valuable land to the government. Having relied 5 5 5 upon this material, the detaining authority recorded its subjective satisfaction as to the dangerous activities of the detenu as a slumlord and to prevent him from acting in such prejudicial manner in future it passed the impugned order of detention. 3. The order of detention has been challenged mainly on the following grounds: (A) Exhibits A, B and C to the bail application No.22 of 2004 referred to in the grounds of detention in paragraph 4(a)(vi) were not furnished to the detaining authority alongwith the documents on the basis of which respondent no.1 formulated the grounds of detention; (B) As required under section 10 of the said Act the report of respondent No.1 was not placed before the Advisory Board; (C) Hindi translation of the entire page 4 consisting of a part of paragraph 3 and paragraph 4 of the grounds of detention alongwith the grounds in English was not supplied to the detenu; (D) A translation of the order passed in the remand application dated 25.4.2004 was not supplied and moreover the said application was not legible; (E) Copies of in-camera statements of witnesses "B" and "D" in Marathi language were not legible; and (F) There was considerable delay in making order of 6 6 6 detention from the date of recording of last in-camera statement of witness "E" until the order of detention. No other ground was raised by the learned counsel for the petitioner. 4. We heard the learned counsel for the parties at great length. Perused the petition, annexures thereto and the affidavits filed by the respondents. At the outset, we would like to deal with the principle submission of Mr.Solkar. He submitted that the detaining authority has referred to and relied upon the bail application No.22 of 2004, in paragraph 4(a)(vi) of the grounds of detention, which makes reference to exhibits "A", "B" and "C". Those three exhibits were vital and material documents and that they were not furnished to the detaining authority by the sponsoring authority for arriving at subjective satisfaction as to the necessity of detaining him by invoking the said Act. He further submitted that all the three exhibits would have influenced respondent no.1 in arriving at subjective satisfaction whether or not to pass the impugned order of detention. In support of this contention he invited our attention to the bail application filed by the detenu, co-detenu Appu Ahmed Siddique and co-accused Rekha Nagtilak. In paragraph 4, 5 and 6 thereof a 7 7 7 reference to Exhibit "A", "B" and "C" was made by the detenu and co-accused. Paragraphs 4, 5 and 6 are quoted below in extenso for better appreciation of the submission of Mr.Solkar: "4. That the Applicant No.1 was arrested by one officer of the Respondent i.e.API Mr.Balkrishna Pawar on 21.1.2003 in C.R.No.17 of 2003 and subsequently he was granted bail in the said matter by the Hon’ble Sessions Court on 6.6.2003 in Bail Application No.427 of 2003 by HHJ Shri N.D.Deshpande. The said matter is still pending in the Hon’ble court of Sessions for Greater Mumbai. Hereto annexed and marked as Ex.A is the copy of the said FIR. 5. That incidentally on 21.10.2003 the same Police Officer i.e.Mr.Balkrishna Pawar then attached to the office of the Respondent came to be arrested by the officers of Anti-corruption Bureau in C.R.No.83 of 2003 under the section 7 of the prevention of corruption Act, 1988 at the instance of Applicant No.3. Whereupon Explanation the said Officer stated that because he arrested Applicant No.1 in the aforesaid matter therefore Applicant No.3 falsely implicated him in the said matter of the corruption. Hereto annexed and marked as Ex.B is the copy of the said FIR. The said Police Officer was subsequently release on Bail by the order of the Hon’ble Spl.Court. 6. That on 1.1.2004 the very same police officer API.Pawar gave threat to the Applicant No.3 of his life and of falls implication in case at the instance of his police friends any where. The Applicant No.3 immediately lodged his Complaint in writing to the higher authorities for the said incident on 15.1.2004. Hereto annexed and marked Ex.C is the copy of the said representation". 8 8 8 . Mr.Solkar further submitted that the aforesaid Exhibits and in particular Exhibits "B" and "C" clearly show that the detenu has been falsely implicated in L.A.C. No.7 of 2004. According to Mr.Solkar, that offence came to be registered against the detenu and co-accused at behest of Balkrishna Pawar against whom co-accused Rekha had lodged complaint under section 7 of the Prevention of Corruption Act. Exhibit "C" clearly demonstrates that such apprehension was expressed as early as in January 2004 by lodging a complaint to the higher authorities. Mr.Solkar, therefore, submitted that all the three exhibits mentioned in the aforesaid paragraphs were material and vital documents and would have definitely influenced the mind of respondent no.1 in arriving at subjective satisfaction whether or not to pass the impugned order of detention. In support of this contention Mr.Solkar placed reliance upon the judgments of the Apex Court in Ashadevi V. K.Shivraj and Anr. AIR Ashadevi V. K.Shivraj and Anr. AIR Ashadevi V. K.Shivraj and Anr. AIR 1979 Supreme Court 447 and State of U.P. Vs. 1979 Supreme Court 447 and State of U.P. Vs. 1979 Supreme Court 447 and State of U.P. Vs. Kamal Kishore Saini AIR 1988 Supreme Court 208 Kamal Kishore Saini AIR 1988 Supreme Court 208 Kamal Kishore Saini AIR 1988 Supreme Court 208. 5. On the other hand Mr.Borulkar, learned Public Prosecutor invited our attention to the reply affdiavit and in particular paragraph 19 thereof to contend that Exhibit "A", "B" and "C" to 9 9 9 the aforesaid bail application were not vital and material documents inasmuch as C.R.No.17/2003 and C.R.No.83/2003 were not relied upon while issuing the order of detention. All the three documents had no connection with L.A.C. No.7/2004 which was registered under section 52, 43 of MRTP Act. Mr.Borulkar, in support of his contentions, placed heavy reliance upon the judgment of this court in Smt.Sharifa Abubaker Zariwala Vs. The Union of Smt.Sharifa Abubaker Zariwala Vs. The Union of Smt.Sharifa Abubaker Zariwala Vs. The Union of India & Ors. 1997 ALL MR (Cri.) 528 India & Ors. 1997 ALL MR (Cri.) 528 India & Ors. 1997 ALL MR (Cri.) 528. 6. A perusal of the bail application and in particular paragraphs 4, 5 and 6 referred to above show that all the three documents, annexed to the bail application filed by the detenu, were admittedly not placed before the detaining authority. In so far as Exhibit "B" is concerned, it was FIR in C.R. No.83 of 2003 lodged by Rekha, co-accused in L.A.C. No.7 of 2004, against Balkrishna Pawar, a police officer, attached to the office of the respondent. Pawar being a police officer had registered an offence against the detenu bearing C.R.No.17 of 2003 in pursuance of the FIR, Exhibit "A" to the application, lodged by the sister of the detenu’s brother’s wife, who had committed suicide. It was further stated that the stand of the police officer Pawar in C.R.No.83 of 10 10 10 2003 was that since he had registered a criminal case against the detenu bearing C.R. No.17 of 2003 he was falsely implicated in the corruption case. Exhibit "C" to the bail application was a copy of the representation made by detenu stating that Pawar had given threats to the detenu of his life and of false implication at the instance of his police friends and that is how, according to the detenu, he has been falsely implicated in L.A.C. No.7 of 2004. In view of this it was contended that all the three Exhibits would have certainly influenced the detaining authority while recording its subjective satisfaction whether or not to pass the detention order. All the three exhibits centre around Balkrishna Pawar, a police officer. It is not disputed that after registration of C.R.No.83 of 2003 against Balkrishna Pawar under Prevention of Corruption Act, 1988 he came to be suspended and till this date he is under suspension. It is clear from the record that he had no connection whatsoever either with the police station to which he was attached before his suspension or the officer of the Municipal Corporation at whose instance L.A.C. No.7 of 2004 was registered against the detenu. As a matter of fact, after his suspension he had no access to the police station as also to the record concerning the detenu and in 11 11 11 particular L.A.C. No.7 of 2004. The said crime was registered against the detenu and others, after having found them encroaching upon the Government land. The police officer Pawar did not play any role whatsoever in the process of issuing the impugned order. We, therefore, find force in the submission advanced by Mr.Borulkar, learned P.P. that the documents Exhibits "A", "B" and "C" annexed to the bail application No.22 of 2004 were not material and vital documents. It is clear that the detaining authority did not rely on C.R. No.83/2003 and C.R. No.17 of 2003 or the documents in connection therewith while issuing the order of detention. In our opinion, the order of detention is perfectly valid and it does not get vitiated on the ground of non placement of Exhibits "A", "B" and "C" to the bail application No.22 of 2004 and non application of mind as alleged. 7. Coming to the judgment of the Apex Court in Ashadevi V. K.Shivraj Ashadevi V. K.Shivraj Ashadevi V. K.Shivraj (supra), though we found that the proposition laid down in the said judgment cannot be disputed it would not apply to the facts of the present case. In that case, admittedly three facts were not communicated or placed before the detaining authority before it passed the order of detention against the detenu, namely, (i) that 12 12 12 during interrogation of the detenu, in spite of request, neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate on December 14, 1977 and (iii) that the confessional statements were squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody. The first two had a bearing on the question whether the confessional statements had been extorted under duress from the detenu or not while the third obviously was in relation to the confessional statements which formed the main foundation of the impugned order and as such were vital facts having a bearing on the main issue before the detaining authority. Further, in that case, the request to have presence or consultation of lawyer was turned down owing to some misconception of the legal position and, therefore, it was observed that such a request was made and refused ought to have been intimated to the detaining authority. The Apex Court further observed that in passing the detention order, the detaining authority based its decision on the detenu’s confessional statement of December 13 and 14, 1977 and, therefore, it was obligatory upon the Customs Officers to report the 13 13 13 retraction of those statements by the detenu on December 22, 1977 to the detaining authority and that it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention. Such are not the facts in the present case. Moreover, we have already recorded our findings that the documents Exhibits "A", "B" and "C" were not vital and they would not have influenced the detaining authority for making up its mind whether or not to issue the impugned order of detention. Therefore, the judgment in Ashadevi Ashadevi Ashadevi V. K.Shivraj’s V. K.Shivraj’s V. K.Shivraj’s case (supra) would have no application to the facts of the present case. 8. Even in the judgment in State of U.P. V. State of U.P. V. State of U.P. V. Kamal Kishore Saini’s case Kamal Kishore Saini’s case Kamal Kishore Saini’s case (supra) the detenus were supplied only with the copy of the FIR and also extract of the chargesheet and not the statements under section 161 of the Criminal Procedure Code. It was undisputed that the chargesheet was subsequently submitted in the Court and the respondents were furnished with the copies of the statements recorded under section 161 of Criminal Procedure Code long after the passing of the order of detention communicating the grounds of 14 14 14 detention. It is against this backdrop the Apex Court held that non supply of the document would vitiate the order of detention. In our opinion, that judgment would also not assist the detenu to persuade us to hold that the order of detention was vitiated on the ground of non placement of Exhibits "A", "B" and "C" to the said bail application before the detaining authority. Subjective satisfaction of detaining authority, in our opinion, cannot be said to have been vitiated. 9. In this connection, we may also usefully refer to a judgment of the Division Bench of this Court in Smt.Sharifa Abubaker Zariwala Smt.Sharifa Abubaker Zariwala Smt.Sharifa Abubaker Zariwala (supra). This court had an occasion to deal with similar situation wherein after considering the judgment of the Apex Court in the case of Ashadevi Ashadevi Ashadevi (supra) this court in paragraph 13 had observed thus: "13. .... .... ...Perusal of the judgment shows that non-placement of every material does not vitiate the satisfaction recorded by the detaining authority. It is only the non-placement and non-consideration of material which is vital for recording subjective satisfaction which vitiates the satisfaction recorded. Therefore, an enquiry has necessarily to be held by the Court as to whether the material which has been withheld or not placed or not considered is vital from the point of view of recording of the satisfaction. The judgment of the Supreme Court in Ashadevi’s case is an authority 15 15 15 for the proposition that material that is vital for recording satisfaction, that it is necessary to preventively detain the person concerned, if withheld and not considered by the detaining authority, then it vitiates the satisfaction. It is not an authority for the proposition that the Court cannot consider the nature of the material which is alleged to have been withheld or not considered by the detaining authority to find out whether the material withheld is vital for reaching the subjective satisfaction recorded by the detaining authority or not". (emphasis supplied) 10. Besides the finding recorded by us that Exhibits "A", "B" and "C", annexed to the bail application No.22 of 2004, were not material and vital documents, the law settled by this court in Sharifa Zariwala’s Sharifa Zariwala’s Sharifa Zariwala’s case also needs to be taken note of. It is clear that even if a particular document/documents of which atleast a detenu is not ignorant and/or admittedly they are his documents, and if on the ground of non placement of such documents the detenu assails the order of detention he should place such documents, before the court, to consider whether or not the document withheld was vital for reaching the subjective satisfaction recorded by the detaining authority. In other words, merely because certain documents were not placed before the detaining authority while arriving at subjective satisfaction, that by itself, in our opinion, would not vitiate the 16 16 16 satisfaction unless those documents are placed before this court so as to consider that they would have influenced the detaining authority for recording the subjective satisfaction as to the necessity of detaining the detenu by invoking the said Act. In the present case, admittedly all the three exhibits to the bail application were available with the detenu. The petitioner did not place them before us to consider its nature to find out whether or not they were vital for reaching the subjective satisfaction recorded by the detaining authority and/or influenced the detaining authority for arriving the subjective satisfaction. 11. That takes us to consider the next contention urged by Mr.Solkar, learned counsel for the petitioner, that under section 10 of the said Act, it was obligatory on part of respondent no.2 - State of Maharashtra to make reference to the Advisory Board within three weeks from the date of detention of a person and place before the said Advisory Board the grounds on which the order had been made and also the report submitted by respondent no.1 under section 3(3) of the said Act so also the documents which accompanied the said report. According to Mr.Solkar, the report under section 3(3) was not placed before the Advisory 17 17 17 Board. The petitioner, however, did not assert in the petition that the report under section 3(3) of the said Act was not supplied to the Advisory Board at all. The petitioner has simply stated in the petition, that respondent nos.2 to 5 are called upon to furnish the details on which reference was made and as to whether the said report was placed before the Advisory Board alongwith the reference. In other words, there is no specific contention in the petition that the report under section 3(3) was not placed before the Advisory Board alongwith the reference. Probably that is the reason why reply affidavit was not clear. We, therefore, perused the original file of the Advisory Board. The original file clearly shows that the report of respondent no.3 under section 3(3) was placed before the Advisory Board. In view thereof this contention of Mr.Solkar deserves to be rejected outright. 12. Mr.Solkar, next invited our attention to the grounds "M", "N" and "O" in the petition and urged that non supply of translation of the entire page 4 consisting of a part of para 3 and para 4 of the grounds of detention in Hindi language alongwith the original English grounds of detention and illegibility of the documents would vitiate the 18 18 18 satisfaction recorded in the impugned order. The grounds "M", "N" and "O" in the petition are quoted below in extenso for better appreciation of the submission: "M. The petitioner states that the Detaining Authority has not supplied the translation of the entire page No.4 consisting of a part of para 3 and para 4 of the grounds of detention in Hindi language alongwith the original English grounds of detention. The petitioner states that the Detaining Authority ought to have supplied the Hindi translation of the said page so as to enable the detenu in making an effective, proper and meaningful representation against his detention at the earliest. Failure to do so by Respondent No.1 has violated both the facet of Article 22(5) of the Constitution of India inasmuch as there is non-communication of the grounds of detention and consequently, the non-supply of the said Hindi translation of the said page has handicapped the detenu in making a effective, proper