M.S. Karnik JUDGMENT
M.S. Karnik, J.
1. Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
2. The petitioner - detenu takes an exception to the order of detention dated 11/2/2020 passed by the respondent No. 1 - the Commissioner of Police, Nashik, detaining him for the period of one year under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black-Marketing of Essential Commodities Act, 1981 (hereinafter referred to as 'the said Act' for short).
3. The detaining authority having been satisfied that the petitioner is acting in a manner prejudicial to the maintenance of public order and with a view to prevent him from doing so made an order in exercise of powers conferred by sub-section (2) of Section 3 of the said Act. The grounds of detention dated 11/2/2020 were communicated to the petitioner. The Sponsoring Authority submitted a proposal for detention of the petitioner indicating therein that the petitioner's record shows he is a "Dangerous Person" as defined in Section 2 (b-1) of the said Act. The detaining authority relied upon four offences registered against the petitioner mentioned in paragraph 4(a) under various provisions of the Indian Penal Code ('IPC' for short). The detaining authority also relied upon the confidential statements of two witnesses viz. witness 'A' and witness 'B' and the preventive action initiated against the petitioner under Sections 107, 110 (E)(G) of the Code of Criminal Procedure.
4. The petitioner was informed that the State Government shall within three weeks from the date of the petitioner's detention make a reference to place the requisite material before the Advisory Board, constituted under Section 9 of the said Act to enable the Advisory Board to make a report whether, in its opinion there is sufficient cause for the petitioner's detention. He was further informed that he could make a representation before the Advisory Board against the detention order.
5. After carefully considering the materials, the detaining authority was satisfied that the petitioner was acting in manner prejudicial to the maintenance of the public order. The petitioner was also informed of his right to make a representation to the State Government pending approval of his detention order under Section 3(3) of the said Act to the detaining authority.
6. The detention order came to be executed on 11/2/2020 itself. The State Government by an order dated 20/3/2020 confirmed the order of detention after considering the opinion/report of the Advisory Board. The Advisory Board opined that there is sufficient cause for continuation of the detention of the detenu.
7. Learned counsel for the petitioner pressed ground (e), (h) and (i) raised by him in his Petition in support of his case. Learned counsel for the petitioner laid special emphasis on ground (h) of the Petition. Inviting our attention to ground (h), learned counsel would submit that though the order of detention was confirmed by the State Government on 20/3/2020 under sub-section (1) of Section 12, the same was communicated to the detenu in the Central Prison, Nashik only on 25/6/2020 i.e. after more than 98 days. This delayed communication of confirmation of the detention order by the State Government would vitiate the detention. Learned counsel for the petitioner would submit that the delay in communicating the order of confirmation of the detention by the State Government is unexplained.
8. Learned counsel for the petitioner relied upon the decisions of this Court rendered in 1) Mukesh @ Mukya Ramesh Desaikar vs. Commissioner of Police Thane and others1, 2) Rohit Sidram Khatal vs. The Commissioner of Police Solapur and others2 and 3) Mohammed Aslam Azad Shaikh vs. The State of Maharashtra through Secretary and others3 in support of his submission that the delay in communicating the confirmation of the detention order would vitiate the detention.
9. Learned counsel for the petitioner also relied upon the decision of the Madras High Court in the case of P. Chinnasamy Thevar vs. State of Tamil Nadu4 to support his submission that unexplained delay in communicating the order of confirmation of detention would vitiate the detention order.
10. Learned APP on the other hand invited our attention to the affidavit-in-reply filed on behalf of the detaining authority and also on behalf of the State Government. Learned APP would submit that on the basis of the materials available, the detaining authority was justified in coming to the conclusion that the petitioner is a dangerous person within a meaning of the said Act and therefore, the order of detention is valid. He would further submit that there is no delay in communicating the grounds or in the execution of the detention order. He invited our attention to the order of detention as well as to the averments made in the affidavit filed by the detaining authority and the State Government. He submits that the delay in communicating the order of confirmation of detention by the State Government cannot be said to be unreasonable.
11. Heard learned counsel for the parties. We have gone through the Memo of the Petition and the relevant exhibits.
CONSIDERATION:-
12. The order of detention is dated 11/2/2020 and was executed on 11/2/2020 itself. The State Government received the report under Section 3 of the said Act from the detaining authority on 12/2/2020. The approval of the detention order was issued by the State Government on 20/2/2020. A reference was made to the Advisory Board under Section 10 on 20/4/2020. The Advisory Board sent its opinion on 17/3/2020 to the State Government which was received on 17/3/2020 itself. The report and proceedings of the Advisory Board were duly considered by the Additional Chief Secretary (Home), Home Department (Special), empowered to do so and the Government confirmed the order of detention on 20/3/2020.
13. The detention order which is confirmed by the State Government on 20/3/2020 is communicated to the detenu on 25/6/2020. The order dated 20/3/2020 which is Exhibit 'C' at page 33 of the Petition confirming the order of detention by the State Government would reveal that the same was received by the detenu in the Central Prison, Nashik through the Jailer on 25th June, 2020. There is no dispute that there is a delay of 58 days in serving the copy of the confirmation of the detention order dated 20/3/2020. In the affidavit filed by the detaining authority there is no explanation whatsoever as regards the said delay in communicating the order dated 20/3/2020 confirming the detention. Even in the affidavit-in-reply filed on behalf of the State Government duly affirmed by Mr. Aniruddha Venkatesh Jewlikar, Deputy Secretary (In-charge), in response to ground (h) would reveal that except for stating there is no delay in communication of the confirmation order to the detenu, there is no explanation much less a reasonable explanation as regards the delay in communicating the said order almost after 58 days. We find that the delay in communicating the order of detention which was confirmed by the State Government under Section 12(1) is unexplained.
14. The question whether the delay in communicating the confirmation of the detention order would vitiate the detention came up for consideration before the High Court of Madras in the case of P. Chinnasamy Thevar (supra). The Lordships were considering the question of delay in communicating the order of confirmation of detention in the context of the provisions of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum-Grabbers Act, 1982. A useful reference to paragraphs 3 and 4 of the decision in P. Chinnasamy Thevar (supra) case would be material in the present context. Paragraphs 3 and 4 read thus:
"3. There can be no doubt from the above factual panorama that though the representation was tried to be considered expeditiously, yet for some unknown reasons, it remained in the cold storage and the result thereof was not communicated to the detenu for a considerable period. There is absolutely no explanation in so far as this delay is concerned. The law is settled that Article 22 (5) of the Constitution guarantees the detenu an earliest opportunity of making representation against the order. The said guarantee would also include the expeditious consideration. However the question is as to whether the said guarantee would also include expeditious communication of the result of the representation of the detenu. In our opinion the representation should not only be considered expeditiously but the result thereof has also to be intimated to the detenu. If the representation is decided upon and the detenu is not informed about the same, he would be in a state of suspended animation and would obviously not be able to decide upon the further course to be taken like making a fresh representation on the fresh grounds the guarantee given by Article 22 (5) of the expeditious consideration of the representation would remain an empty formality if the State Government is not required to intimate the result of the rejection of the representation in a reasonable time, although what would be the reasonable time may differ from case to case depending upon the factual circumstances. The Apex Court has taken a view in its celebrated case reported in Harish Pahwa v. State of Uttar Pradesh that a representation made by the detenu has to be considered without are delay and the administrative delay in calling comments from the other departments, seeking the opinion of Secretary after Secretary and allowing the representation without being attended to cannot be brooked. In the same strength, the Apex Court says in paragraph 3 as follows:
"We would emphasis that it is the duty of the State to proceed to determine representation 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."
It would be, therefore, clear that the stage of communication is also an integral and unseparable stage in consideration of the representation.
4. This Court has also taken the view that non-explanation for the delay in intimating the fact of disposal to the detenu would also result in rendering the further detention invalid in Chinnasamy Thevar v. State of Tamil Nadu and Another. The learned Public Prosecutor relied upon the reported decision in D.S. Roy v. State of West Bengal, where the Apex Court was considering the question of delay in communication of the fact of confirmation of the detention by opinion of the Advisory Board. The learned Public Prosecutor particularly invited our attention to the observations made in paragraph 12 to the following effect:
"While the decision of the Government to confirm the opinion of the Board which according to the decision in Dattatraya Moreshwar Pangarkar, (MANU/SC/0014/1952 : AIR 1952 SC 181) has the effect of extending the period of detention beyond three months is in consonance with the tenor of the Act as well as the provisions of the Constitution there is nothing to warrant the submission that the order of confirmation and extension of the period of his detention should also be within three months from the date of detention. Nonetheless the communication must be within a reasonable time. What is reasonable time must necessarily depend upon the circumstances of each case. The effect of non-communication however may be an irregularity which does not make the detention otherwise legal illegal."
(emphasis supplied).
The learned Public Prosecutor very heavily relies on the last sentence viz., the effect of non-communication is an irregularity which does not make the detention otherwise legal illegal. We are afraid that these observations are being read without context. It will be seen that in the reported decision the question was relating to the stage of confirmation of the detention after the Advisory Board had given its opinion. The question did not pertain to the constitutional guarantee given by Article 22(5) of the expeditious opportunity to make the representation and its expeditious consideration. The learned Public Prosecutor argues that what applies to the confirmation must also apply to the representation. In our opinion the argument is incorrect. While confirmation is a power under the provisions of the Act of the State, the consideration of the representation expeditiously is its duty as against the right guaranteed to the detenu. Section 12(1) of the Tamil Nadu Act 14 of 1982 gives that power to the State Government. The language suggests that the State Government after the report of the Advisory Board supporting the detention may, confirm the detention order meaning thereby that the State Government even in cases where the Advisory Board has nodded the detention may choose not to confirm the detention. Thus the act of confirmation and the act of consideration of the representation are distinct stages by themselves. The argument to the effect that what applies to the confirmation should also apply to the consideration must necessarily fail on this logic. It cannot be forgotten that earlier in this very paragraph 12 the Apex Court observed thus:
"Though there is no provision in the Act an order of confirmation which has the effect of extending the period of detention beyond the mandatory period of three months must be made known to the detenu. In our view there is no warrant or justification for an order confirming the detention on the opinion of the Board which has the effect of extending the period of detention remaining in the files of the executive without the same being communicated to the person most concerned the detenu - whose freedom has been subjected to jeopardy. He is entitled to know that the Board had considered his representation as well as his personal submissions if he has chose to appear before - it and that it had been found that there was sufficient cause for his detention and that the State Government had agreed with it."
Though these observations suggest the importance of confirmation order they sufficiently highlight the necessity of the orders being made known to the detenu. The ruling and the emphasised phraseology should apply only to the communication of confirmation of detention and not to the result of the representation."
15. We are in respectful agreement with the view taken by Their Lordships in the case of P. Chinnasamy Thevar. We are also of the view that there is no warrant or justification for an order confirming the detention on the opinion of the Board which has the effect of extending the period of detention remaining in the files of the executive without the same being communicated to the person most concerned the detenu - whose freedom has been subjected to jeopardy. He is entitled to know that the Board had considered his representation as well as his personal submissions if he has chose to appear before - it and that it had been found that there was sufficient cause for his detention and that the State Government had agreed with it. It is necessary that the order is made known to the detenu at the earliest.
16. We have already observed that there is absolutely no explanation for the delay of 58 days delay in communicating the order confirming the detention. No doubt, that the authorities can always explain the delay in communicating the order and the same if found to be reasonable and satisfactory can be accepted depending of the facts of each case. The Petition deserves to succeed on this ground.
17. In the result it must be held that there was a totally unreasonable delay in communicating the order confirming the detention rendering the detention order unconstitutional.
18. The other ground pressed by learned counsel for the petitioner is ground (i) which reads thus:-
"(i) The petitioner states and submits that the Sponsoring Authority while forwarding the proposal did not place before the Detaining Authority the detailed order dated 25/11/2020 passed by the Ld. Sessions Judge Nashik, granting bail in C.R. No. 61/2019 but forwarded only the operative part. The detailed order passed by the Ld. Sessions Judge, Nashik while releasing the detenu was a vital piece of evidence and the same ought to have been forwarded to the Detaining Authority and the Detaining Authority ought to have called for it and perused the same."
19. In response to ground (i), the detaining authority in the affidavit-in-reply has stated that he perused the operative part of the bail order only to assure himself that the petitioner-detenu is released in the said crime by the Hon'ble Court. It is stated that the detaining authority referred to it only as a corroborative piece of document. It is further stated that the detention order is not passed only on this ground. The Sponsoring Authority has brought the fact on record that the petitioner - detenu is released on bail. It is stated that the detaining authority is further subjectively satisfied on the basis of other materials on record that present petitioner is a dangerous person and after he is released on bail by respective Court he is likely to revert to similar activities which are mentioned by detaining authority in paragraph nos. 4(a), 4(a)(i), 4(a)(ii), 4(a)(iii), 4(a)(iv) and two confidential statements mentioned in paragraphs 5(i) and (ii) of grounds of detention.
20. From the record and the affidavit-in-reply filed by the respondent, it is clear that the Sponsoring Authority while forwarding the proposal to the detaining authority did not place the detailed order of the Sessions Court stating the reasons while granting the bail to the detenu. It is seen that only operative part was forwarded by the Sponsoring Authority to the detaining authority. The order passed by the learned Sessions Judge while releasing the detenu on bail was a wider piece of evidence and ought to have been forwarded to the detaining authority by the Sponsoring Authority. For coming to this conclusion we draw support from the observations made by this Court in the case of Mukesh @ Mukya Ramesh Desaikar vs. Vivek Phansalkar & ors.5. The relevant paragraph 10 reads thus:
"10. We have carefully perused grounds (d), (e), (f) and (h) in the petition and those grounds needs no consideration since we are of the opinion that the first respondent has passed the order of detention after proper application of mind. However, it appears that the sponsoring authority while forwarding the proposal to the first respondent i.e. detaining authority did not place detailed order stating the reasons while granting bail to the detenu in C.R. No. 196 of 2019. It appears from the perusal of the original record and reply filed by the respondents that the proposal submitted by the sponsoring authority did not contain the copy of the reasoned order dated 17th June 2019 passed by the Sessions Judge, Kalyan, granting bail to the detenu in C.R. No. 196 of 2019. It appears that only operative part of the said order was forwarded by the sponsoring authority to the detaining authoring. The detail order passed by the learned Sessions Judge, Kalyan while releasing the detenu was a wider piece of evidence and ought to have been forwarded to the detaining authority by the sponsoring authority."
21. The Hon'ble Supreme Court in the case of Rushikesh Tanaji Bhoite vs. State of Maharashtra6 has taken a view that full text of order granting bail in favour of the detenu was necessary to be placed before the detaining authority so as to facilitate him to take an appropriate decision thereby recording the subjective satisfaction.
22. Therefore, we are of the view that the order of detention impugned in the petition cannot be legally sustained even on ground (i).
23. As the Petition deserves to succeed on grounds (h) and (i) which we have discussed hereinabove, it is not necessary to advert to the other ground of challenge raised in the Petition.
24. The Writ Petition is allowed in terms of prayer Clause (II) which reads thus:-
"II. That this Hon'ble Court be pleased to quash and set aside the impugned order of detention of the petitioner namely Sunil Pandharinath Dhotre by order dated 11/2/2020 vide order no. D.O. 2020/MPDA/DET-02/CB-20 for a period of one year issued by the Commissioner of Police, Nashik (Shri Vishwas Nangre Patil) detaining the petitioner under the provisions of M.P.D.A. Act for a period of one year."
25. The petitioner - detenu - Sunil Pandharinath Dhotre shall be released forthwith unless otherwise he is required in any other matter.
26. Rule is made absolute accordingly.
27. The Writ Petition is disposed of accordingly.
28. This judgment will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this judgment.
1 Criminal Writ Petition No. 194 of 2020
2 Criminal Writ Petition No. 1576 of 2020
3 Criminal Writ Petition No. 235 of 2020
4Habeas Corpus Petition No. 587 of 1998 (16/2/199) reported in 1999(1) MWN (Cr.) 112.
5 Criminal Writ Petition No. 194 of 2020.
6 Criminal Appeal No. 24/2012 decided on 4th January, 2012.
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