Dismissed

Soud Ahmad Juber Ahmad Khan v. the Commissioner of Police , Thane and Ors.

Bombay HC1 Mar 2005WP/2403/2004

Case brief

AI extract

What is this about?

In this Criminal Writ Petition, the Court dismissed the challenge to a detention order under the MPDA Act. The Court held that the detenu was adequately informed of past detention facts via the served copy of the earlier order and found the nearly two-month delay in issuance was reasonably explained and did not snap the live link.

What did the court decide?

Petition dismissed; Rule discharged with no order as to costs.

Soud Ahmad Juber Ahmad Khan Vs the… — Civil Procedure and Limitation | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE JURISDICTION
 CRIMINAL WRIT PETITION NO.2403 OF 2004

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 Soud Ahmad Juber Ahmad Khan, )
 Age 42 years, Occ: Business, )
 R/at Sanjay Gandhi Nagar, )
 Beside Masjid, Near Railway Station,)
 Ulhasnagar Camp 3. )..Petitioner.

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 Versus

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 1. The Commissioner of Police, )
 Thane. )

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 2. The Secretary (Preventive )
 Detention) Govt.of Maharashtra, )
 Home Department, Mantralaya, )
 Mumbai - 400 032. )

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 3. The Superintendent of Jail, )
 Yerwada Central Prison, )
 Pune. )
 4. The State of Maharashtra. )..Respondents
 --

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 Shri Niranjan Mundargi for the Petitioner.

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 Shri D.S.Mhaispurkar, APP for the Respondents.

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--

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 CORAM : R.M.S.KHANDEPARKAR &
 P.V.KAKADE, JJ.

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 DATED : 1st March, 2005.

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ORAL JUDGMENT : ( Per R.M.S.Khandeparkar, J )

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 1. Heard. Perused the records.

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 2. The petitioner challenges the order of
 detention bearing No.DCB/PD/MPDA/12/04 dated 16th
 September, 2004 issued by the respondent No.1 in
 exercise of powers under Section 3(1) of the
 Maharashtra Prevention of Dangerous Activities of
 Slumlords, Bootleggers, Drug Offenders and Dangerous
 Persons Act, 1981, hereinafter referred to as "MPDA
 Act" read with the Government Order, Home Department
 (Special) No.DDS.1303/10/SPL.3(B) dated 23rd June,
 2004 with a view to prevent the petitioner from acting
 in any manner prejudicial to the maintenance of public
 order.

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 3. The detention order is sought to be challenged
 on two grounds. Firstly, on account of failure on the
 part of the respondents to supply material documents
 relied upon by the detaining authority for arriving at
 the subjective satisfaction regarding the need for
 issuance of detention order against the detenu, and
 secondly that there was inordinate delay between the
 proposal for clamping detention order and actual
 issuance of detention order which has resulted in
 snapping of live link between the detention order
 issued and the purpose for which it was sought to be
 issued, and further that there is no satisfactory

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 explanation for such delay.

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 4. The petitioner is brother of Shri Jamil Ahmed
 Juber Khan @ Don, who has been detained under the
 impugned order of detention. The proposal for
 detention of the detenu was moved on 23rd July, 2004
 and the order of detention was passed on 16th
 September, 2004 and was executed on the same day.

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 5. While assailing the impugned order of
 detention on the first ground of challenge, the

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 learned Advocate appearing for the petitioner has
 submitted that the grounds of detention refer to the
 previous detention of the detenu under the provisions
 of MPDA Act, being one of the grounds for arriving at
 the subjective satisfaction by the detaining authority
 for clamping detention order against the detenu under
 MPDA Act. However, the ground neither discloses the
 period of such earlier detention nor the detenu was
 supplied with any material in relation to any such
 earlier detention, and therefore it has resulted in
 affecting constitutional right of the detenu
 guaranteed under Article 22(5) of the Constitution of
 India. It is the contention of the learned Advocate

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 for the petitioner that though the list annexed to the
 grounds refers to a detention order dated 12th May,

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 1998 and copy of such order was furnished to the
 detenu at the time of service of the detention order,
 there is no indication in the grounds for detention
 that earlier detention spoken of relates to the said
 order dated 12th May, 1998. The detenu is entitled to
 know the grounds of detention with necessary clarity
 in that regard, so as to enable him to make
 appropriate representation which is his fundamental
 right guaranteed under Article 22(5) of the
 Constitution of India and that itself being violated,
 the order of detention is to be held as bad in law.
 Reliance is sought to be placed in the decision of the
 Apex Court in the matter of Sophia Gulam Mohd.Bham v.

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State of Maharashtra & Ors., reported in 1999(6) SCC
 593 while contending that the concept of "grounds"
 used in Article 22(5) of the Constitution of India not
 only includes conclusions of facts but also all
 materials sought to be relied upon for conclusions by
 the detaining authority.

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 6. The learned APP, on the other hand, has

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 submitted that, undisputedly, the detenu was served
 with the copy of the earlier detention order dated
 12th May, 1998 along with the grounds in support of
 detention order and it is nobody’s case that the
 detenu was detained prior to the present detention

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 under any order other than the said order dated 12th

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 May, 1998. Obviously, therefore, the detenu was fully
 aware of the fact that the reference to the earlier
 detention in the grounds of detention relates to the
 detention under order dated 12th May, 1998 and copy
 thereof being duly served upon the detenu, he was not
 prejudiced in any manner nor there was any
 infringement of constitutional right of the detenu
 guaranteed under Article 22(5) of the Constitution of
 India in relation to his entitlement of making an
 effective representation against the order of
 detention. The learned APP has sought to rely upon

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 the decision in the matter of Sanjay Kalpanath Pandey

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v. Shri M.N.Singh & Ors., reported in 2001 ALL
 MR(Cri) 2241.

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 7. It is not in dispute nor it can be disputed
 that the grounds in support of the detention do refer
 to the earlier detention of the detenu. Relevant
 portion of the grounds in support of the detention in
 that regard reads that "though, you were detained once
 in the past under the provisions of MPDA Act 1981,
 there is no effect on your criminal activities."
 Undoubtedly, therefore, there is a clear reference,
 and reliance is placed by the detaining authority on
 the past history of the detenu while arriving at the

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 subjective satisfaction regarding need for the
 detention of the detenu under MPDA Act. The
 contention of the learned APP that the said reference
 merely is a preamble, is totally devoid of substance.
 The preamble may not form the grounds for arriving at
 the subjective satisfaction by the detaining
 authority. Undisputedly, the grounds which have been
 recorded in the matter are to be found in paragraph 3
 whereas the above-quoted finding of the detaining
 authority is to be found in paragraph 4. In fact, the
 paragraph 4 clearly opens with the sentence "from the
 instances quoted above in para 3(a) and (b)(i) and
 (ii) of the grounds of detention, I am subjectively
 satisfied that you are a criminal goonda of violent
 character, indulging in violent and terrorising
 activities in the limits of Central Police Station,
 Ulhasnagar Camp No.03 of Thane Police
 Commissionerate.............". Thereafter, the

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 detaining authority has referred to habitual criminal
 activities on the part of the detenu and further
 observed that "the action taken against you under the
 existing law of the land proved to be ineffective and
 insufficient to curb your violent as well as
 terrorising activities." The said observation has been
 followed by a reference to the past history of the
 detenu, quoted above, and thereafter, the detaining

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 authority has observed that the detenu himself may
 again indulge in similar activities of serious nature,
 disturbing the maintenance of public order.
 Obviously, therefore, the observations regarding past
 history of habitual criminal activities on the part of
 the detenu quoted in paragraph 4 of the grounds in
 support of the detention can, by no stretch of
 imagination, be held as preamble for the grounds of
 detention. It is, undoubtedly, one of the instances
 relied upon by the detaining authority to arrive at
 the subjective satisfaction regarding the need of
 detention order against the detenu. Being so, the
 decision of the Division Bench in Sanjay Kalpanath

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Pandey’s case (supra) is of no help to the
 respondents.

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 8. The decision of the Apex Court in Sophia Gulam

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Mohd.Bham’s case (supra), is on the point of
 requirement of inclusion of basic facts in the grounds
 in support of the order of detention. Ruling clearly
 is to the effect that the expression "grounds" in
 Article 22(5), not only includes the conclusion based
 on the facts arrived at by the detaining authority but

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 would also include the basic facts which are
 necessarily to be recorded in the grounds for
 detention. Ruling further clarifies that "basic

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 facts" are different from subsidiary facts or further
 particulars. In other words, while it is obligatory
 for the detaining authority to mention the basic facts
 necessary for arriving at the conclusion regarding the
 subjective satisfaction for issuance of an order of
 detention against the detenu. The same rule may not
 apply in relation to subsidiary facts or further
 particulars in relation to the basic facts. Albeit,
 this does not mean that necessary particulars for
 arriving at the subjective satisfaction are not to be
 disclosed to the detenu but the method for conveying
 such facts to the detenu may depend upon the facts and
 circumstances of each case and may not necessarily be
 enumerated in each and every case in detail in the
 grounds in support of the detention order. There may
 be a case where, if the basic facts are disclosed in
 the grounds of detention and they are sufficiently
 supported by the materials and the same are made
 available to the detenu, there can hardly be an
 occasion for the detenu to grumble about

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 non-compliance of Article 22(5) of the Constitution of
 India. Obviously, the case in hand is one of such
 cases. The learned APP is justified in contending
 that it is nobody’s case that the detenu was detained
 under MPDA Act for more than one occasion prior to the
 present detention. Obviously, therefore, the detenu

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 very well knew that he was detained prior to the
 detention in terms of the order dated 12th May, 1998
 and undisputedly, copy of such order was duly
 furnished to the detenu and there was a clear mention
 of the said order in the list of documents annexed to
 the grounds in support of the detention order. Being
 so, there is no substance in the contention of the
 petitioner that there was any lapse on the part of the
 detaining authority in revealing to the detenu the
 necessary materials relied upon for arriving at the
 subjective satisfaction or that the detenu in any
 manner was prejudiced on account of any act in that
 regard on the part of the detaining authority. Once
 it is clear that the reference to the basic facts
 regarding the previous detention of the detenu was
 revealed from only one order, i.e. dated 12th May,
 1998, and the same was clearly referred in the list of
 documents annexed to the grounds in support of the
 detention order and copy thereof was made available to
 the detenu along with service of the order of
 detention, the contention of the petitioner about
 non-supply of material documents or infringement of
 his constitutional right guaranteed under Article
 22(5) of the Constitution of India has to be rejected
 as devoid of substance, and for the reasons aforesaid,
 we do not find any substance in the first ground of

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 challenge to the order of detention.

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 9. The second ground of challenge to the
 detention order relates to the delay on the part of
 the respondents in issuing the detention order after
 the proposal in that regard was moved. The last
 incidence which has been taken into consideration for
 arriving at the subjective satisfaction regarding need
 for issuance of detention order against the detenu is
 the in-camera statement of the witness "B", a grocery
 shop owner, recorded on 20th July, 2004. It is not in
 dispute that the proposal for issuance of detention
 order was made on 23rd July, 2004 and the order was
 issued on 16th September, 2004. As regards the period
 of nearly fifty-five days taken for issuance of
 detention order, the explanation has been furnished by
 the detaining authority in its affidavit dated 24th
 January, 2005. It is disclosed that the sponsoring
 authority had forwarded its proposal for issuance of
 detention order on 23rd July, 2004 which was received
 in the office of the detaining authority on 7th
 August, 2004 through proper channel. After careful
 perusal thereof, A.C.P.(Crime), Thane, prepared a
 detail note and forwarded the same to the detaining
 authority on 19th August, 2004. During the period
 from 7th August, 2004 till 19th August, 2004, there

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 were three holidays i.e. 8th August, 2004, 14th
 August, 2004 and 15th August, 2004. The Additional
 Commissioner of Police (Crime) gave his endorsement on
 21st August, 2004. On 20th August, 2004, it was a
 holiday. The proposal thereafter was placed before
 the detaining authority and on careful perusal
 thereof, it was approved on 21st August, 2004. The
 draft grounds in support of the detention order were
 finalised and typed, and translation thereof in Hindi
 was prepared and the same was completed by 10th
 September, 2004. During the said period, 28th August,
 2004, 29th August, 2004 and 5th September, 2004 were
 the holidays. The Additional Commissioner of Police
 (Crime) gave his endorsement on 11th September, 2004,
 and forwarded the same to the detaining authority. On
 14th September, 2004, the draft of grounds of
 detention was approved by the detaining authority and
 the same was sent for typing. There were holidays on
 11th and 12th September, 2004. The grounds of
 detention were duly typed and compared, and again
 placed before the Additional Commissioner of Police
 (Crime). The ACP (Crime) on careful perusal thereof
 endorsed the same on 15th September, 2004 and
 forwarded to the detaining authority. The detaining
 authority after carefully going through the same
 issued the order of detention on 16th September, 2004.

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 10. It is the contention of the learned Advocate

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 for the petitioner that considering the fact that the
 last statement of the witness was recorded on 20th
 July, 2004 and the proposal was moved on 23rd July,
 2004, the explanation for delay of about two months
 for finalisation of the proposal for issuance of
 detention order sought to be given by the respondents
 cannot be said to be satisfactory explanation and that
 itself discloses snapping of live link between the
 order of detention and the purpose for which it was
 sought to be issued. He has further submitted that
 apart from the movement of the proposal from one
 authority to another, no further details in the matter
 have been disclosed in the affidavit filed by the
 detaining authority. The learned APP, on the other
 hand, drawing attention to the decision delivered by
 us on 25th February, 2005 in another Petition being
 Criminal Writ Petition No.2218 of 2004 in Rupesh Ram

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Thakur v. Shri S.Chakravarty, Commissioner of Police,
Thane & Ors., has submitted that the authorities are
 not required to give day-to-day or minute-to-minute
 explanation in relation to the time spent from the
 last incident till the date of issuance of order of
 detention but has to satisfy the Court that the time
 spent in the process was reasonable one. He has also

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 drawn attention to the statement in the affidavit of
 the detaining authority wherein it has been stated
 that during the relevant period, there were two other
 proposals pending in the office and considering the
 same, according to the learned APP, the time consumed
 for issuance of order of detention cannot be said to
 have rendered the detention order to be stale-one.

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 11. The contention on behalf of the petitioner
 that the explanation, apart from disclosing the
 movement of the proposal from one person to another,
 does not disclose particulars cannot be accepted. The
 affidavit clearly narrates the purpose for which the
 proposal was moved from one person to another, and
 obviously, those details are in relation to the
 movement of the proposal for issuance of detention
 order. It cannot be disputed that the detention order
 cannot be issued as a matter of course and the
 authority has to take proper care and has to apply its
 mind, and for that purpose, has to scrutinise the
 materials at different levels and exactly that has
 been done in the case in hand and the same is revealed
 from the explanation given in the affidavit filed by
 the respondents. It would be therefore incorrect to
 contend that apart from the movement of the proposal
 from one person to another, the affidavit does not

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 disclose the details for which the proposal was moved
 from one person to another person.

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 12. Undoubtedly, in the course of such movement,

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 it does disclose that some time was spent at the
 initial stage when the proposal was received in the
 office of the ACP (Crime), Thane, and again when the
 proposal was initially approved on 23rd August, 2004
 and till the grounds in support of detention order
 were finalised i.e. till 10th September, 2004.
 However, as regards the first period from 7th August,
 2004 to 19th August, 2004, the explanation clearly
 discloses that during the said period, the matter was
 carefully scrutinised by the ACP (Crime), and in the
 process, it took some time. It is also a matter of
 record that the three days, being 8th, 14th and 15th
 August, 2004, were holidays. As regards the second
 period from 22nd August, 2004 to 10th September, 2004,
 the explanation discloses that there were about 73
 pages of the documents and about 66 pages were
 required to be translated in Hindi. Certainly, it
 took some time and the said explanation cannot be said
 to be unsatisfactory explanation.

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 13. It is to be noted that the Apex Court in Union
of India and another v. Chaya Ghoshal and another,

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 reported in 2004 AIR SCW 6999, has held that a period
 of 11 months taken for issuance of detention order
 from the date of the proposal could not be said to
 have resulted in snapping of the live link between the
 order of detention and the purpose for which it was
 issued. In the said case, the proposal for detention
 was sent on 4th July, 2002. The proposal for
 detention was considered by the Central Screening
 Committee on 18th September, 2002 and after
 consideration of all the relevant materials, the order
 of detention came to be passed on 20th November, 2002.
 After considering the factual scenario of the case,
 the Apex Court though observed that undoubtedly there
 was some delay in passing the order of detention,
 however, did not interfere in the detention order on
 that count.

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 14. It is also necessary to lay our hands on the
 decision of the Division Bench of this Court in

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Mohmood Abubukar Marwari v. Union of India & Ors.,

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 reported in 1982 Cri.L.J. 53 wherein it was observed
 that "mere lapse of time hardly means anything unless
 there has, in consequence, arisen or has accrued some
 equity or right which in justice should not be
 adversely affected on account of delay." It is to be
 noted that the delay in issuance of the detention

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 order and delay in disposal of the representations
 filed by the detenu in exercise of his right under
 Article 22(5) of the Constitution of India stand on
 two different footings. In a given case, the delay in
 disposal of the representation by itself may prove to
 be fatal. The same principle would not apply in case
 of delay in issuance of detention order. In case of
 any such delay in issuing detention order from the
 time of the proposal being moved by the sponsoring
 authority, what is relevant to be seen is whether the
 same has resulted in snapping the live link between
 the order of detention and the purpose for which it
 was sought to be issued.

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 15. Bare reading of the grounds for detention and
 the observations made by the detaining authority for
 arriving at the subjective satisfaction regarding the
 need for issuance of detention order disclose that the
 action taken against the detenu under the existing law
 would prove to be ineffective and insufficient to curb
 his violent and terrorising activities. Besides, he
 was detained in jail in past under MPDA Act, however,
 he did not take any lesson therefrom, nor stopped his
 criminal activities after his release from the said
 detention. These observations clearly disclose that
 the detaining authority had taken into consideration

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 the past as well as continued conduct of the detenu as
 being the justification for issuance of detention
 order and that itself discloses that the live link
 between the order issued and the purpose for which it
 was issued had not been snapped on account of the
 lapse of the period of nearly two months from the date
 of proposal till the date of actual issuance of order
 of detention.

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 16. Indeed in Rupesh Ram Thakur’s case (supra),

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 after considering the various decisions of the Apex
 Court, it was observed that "It is to be noted that
 the respondents are not required to give the
 day-to-day or minute-to-minute explanation in relation
 to the time spent from the last incident till the date

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 of issuance of the order. The time spent in the
 process has to be reasonable one and that itself can
 be considered as satisfactory explanation regarding
 the period taken by the authorities for issuance of
 such order." These observations aptly apply to the
 case in hand also.

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 17. For the reasons stated above, there is no case

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 made out for interference in the impugned order of
 detention of the detenu Shri Jamil Ahmad Juber Khan @
 Don, and therefore, the petition fails and is hereby

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 dismissed. Rule is discharged with no order as to
 costs.

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 ( R.M.S.Khandeparkar, J )

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 ( P.V.Kakade, J )

Soud Ahmad Juber Ahmad Khan v. the Commissioner of Police , Thane and Ors.

Case brief

What is this about?

What did the court decide?

Soud Ahmad Juber Ahmad Khan v. the Commissioner of Police , Thane and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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