Quashed

Raja @ Rajesh Rajan Nair v. R.S. Sharma and Ors.

Bombay HC5 Apr 2005WP/2603/2004

Case brief

AI extract

What is this about?

This court quashed a preventive detention order under the MPDA Act. The order, issued in 2003, was executed in 2004 when the petitioner was already in judicial custody. The court held that the detaining authority failed to consider the lapse of time and changed circumstances, violating the requirement of subjective satisfaction.

What did the court decide?

The order of detention of the petitioner is quashed and set aside. The respondents are directed to release the petitioner forthwith.

Raja @ Rajesh Rajan Nair Vs R.S. Sharma… — Constitutional and Fundamental Rights | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE JURISDICTION
 CRIMINAL WRIT PETITION NO.2603 OF 2004

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 Shri Raja @ Rajesh Rajan Nair, )
 Age 27 years, Residing at )
 Sion Koliwada, Indira Nagar, )
 R.No.B-1-147 GTB Nagar, Antop Hill, )
 Mumbai - 400 037. )
 (At present detained at Nasik Road )
 Central Prison, Nasik.) ).. Petitioner

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 Versus

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 1. Shri R.S.Sharma, )
 Ex-Commissioner of Police, )
 Greater Bombay. )
 2. The State of Maharashtra, )
 3. The Superintendent, )
 Nasik Road Central Prison, )
 Nasik. )
 ( The Petitioner is lodged at )
 Nasik Road Central Prison at )
 Nasik ). ).. Respondents
 --

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 Shri U.N.Tripathi, Advocate 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 : 5th APRIL, 2005.

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

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 1. The petitioner challenges his detention which
 has been ordered by the respondent No.1 by the order

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 dated 30th September, 2003 issued in exercise of the
 powers under the Maharashtra Prevention of Dangerous
 Activities of Slumlords, Bootleggers, Drug Offenders
 and Dangerous Persons Act, 1981, hereinafter referred
 to as "MPDA Act". The detention of the petitioner was
 ordered with a view to prevent him from acting in any
 manner prejudicial to the maintenance of public order.
 The order was executed on 24th August, 2004.

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 2. Though the impugned order is sought to be
 challenged on various grounds, it is not necessary to
 refer to all those grounds and suffice to consider the
 ground in relation to the non-application of mind to
 changes in the circumstances with the passage of time
 from the date of issuance of the order till the date
 of execution thereof inspite of the fact that there
 was a gap of nearly one year from the date of issuance
 of the order of detention and execution thereof.

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 3. While assailing the impugned order, the
 learned Advocate for the petitioner submitted that
 undisputedly the order of detention has been issued on
 the basis of three grounds, viz. (i) relating to the
 alleged involvement of the petitioner in criminal
 offence in respect of which a complaint was registered
 as c.R.No.166 of 2003. He further submitted that when

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 the impugned order dated 30th September, 2003 was
 passed, the petitioner was already on bail in the said
 C.R.No.166 of 2003, whereas when the said order was
 executed on 24th August, 2004, the petitioner was
 already in the judicial custody with effect from 17th
 August, 2004. Inspite of the said changes in the
 circumstances, the detaining authority without
 application of mind, as to whether the detention of
 the petitioner in terms of the MPDA Act is necessary
 or not, sought to execute the detention order dated
 30th September, 2003 which was issued nearly one year
 prior to the date of its execution.

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 4. Relying upon the decisions in the matters of
Binod Singh v. District Magistrate, Dhanbad, Bihar &
Ors., reported in AIR 1986 SC 2090, Smt.Shalini Soni

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v. Union of India & Ors., reported in AIR 1981 SC
 431, Salma Rehman Khan v. M.N.Singh & Ors., reported
 in 2001 ALL MR (Cri) 2063, Nafis Ahmed Ansari v.
State of Maharashtra & Ors., reported in 2003 ALL MR
 (Cri) 2131 and of Shri Mohd.Ayub Alimuddin Shaikh @
Chikana Ayub v. Shri M.N.Singh & Ors., reported in
 2004 ALL MR (Cri) 1915, the learned Advocate for the
 petitioner submitted that the law is well settled that
 failure on the part of the detaining authority to
 consider the developments subsequent from the date of

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 issuance of the order of detention till its execution
 would render detention order to be illegal as the same
 would disclose non-application of mind by the
 detaining authority in relation to the detention of a
 person sought to be detained, and therefore, the
 petitioner should be ordered to be released forthwith.
 He further submitted that the affidavit in reply filed
 by the concerned authorities confirms the fact of
 non-application of mind by the detaining authority to
 the said aspect.

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 5. The learned APP, on the other hand, placing
 reliance in the decision of the Apex Court in the
 matter of T.P.Moideen Koya v. Government of Kerala &
Ors., reported in 2004 AIR SCW 5364, submitted that
 merely because the petitioner had surrendered before
 the learned Magistrate and the order of detention was
 served upon him while in custody, that itself would
 not lead to a conclusion about non-application of mind
 by the detaining authority to the events subsequent to
 the issuance of the order of detention against the
 petitioner. He further submitted that the decision in
Moideen Koya’s case (supra) clearly rules that if the
 detaining authority considers the aspect regarding the
 need of detention of the detenu under the preventive
 detention inspite of the fact that the detenu had been

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 in the custody on account of criminal offences, that
 itself is sufficient and that it is not necessary to
 have an independent consideration of the subsequent
 events even if the detenu is taken in the custody on
 account of criminal offences subsequent to the
 issuance of order of detention. The learned APP
 further submitted that the view taken by the Apex
 Court in Binod Singh’s case (supra) stands modified by
 the decision of the Apex Court in Moideen Koya’s case

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(supra). Further, drawing attention to the affidavit
 filed by the detaining authority, the learned APP
 submitted that in any case the fact about the
 surrender of the detenu in the criminal case was duly
 considered by the detaining authority, besides that,
 even though the detenu had surrendered, the bail
 granted to the detenu was not cancelled by the learned
 Magistrate.

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 6. Undoubtedly, the order of detention was issued
 with a view to prevent him from acting in any manner
 prejudicial to the maintenance of public order. The
 grounds in support of the detention order clearly
 disclose that the detaining authority had taken into
 consideration the fact that the detenu was granted
 bail in C.R.No.166 of 2003 and he had availed the said
 facility on 12th September, 2003. The detaining

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 authority had also considered that the detenu, having
 been released on bail and being a criminal, was likely
 to revert to the similar activities prejudicial to the
 maintenance of public order in future and that
 therefore it was necessary to detain him under the
 MPDA Act. A clear observation in that regard is to be
 found in the paragraph 6 of the grounds in support of
 the detention order. Being so, it is apparent that
 the fact that the detenu was granted bail and he was
 accordingly released from the custody had not only
 weighed in the mind of the detaining authority for
 being subjectively satisfied about the need for

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 issuance of detention order but was one of the basis
 for the detaining authority to arrive at the
 conclusion that in order to prevent the detenu from
 reverting to the similar activities in future, the
 clamping of detention under the MPDA Act was
 absolutely necessary. Undisputedly, the order of
 detention could not be executed till August 23, 2004.
 In reply to the challenge about non-application of
 mind on account of non-consideration of the events
 subsequent to the issuance of the detention order, the
 detaining authority in its affidavit has stated that
 after issuance of the Order of Detention, since the
 detenu was not traceable thereafter inspite of
 repeated efforts made to serve the Order of Detention,

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 the Order of Detention could not be executed.
 Therefore, the proposal was moved on 20th February,
 2004 to the State Government for taking action u/s
 7(1)(b) of MPDA Act. Inspite of the same the Order of
 Detention could not be executed upon the detenu.
 Thereafter the notice was issued against the surety of
 the detenu i.e. his mother in CR No.6 of 2002 and it
 is only thereafter the detenu surrendered to the
 judicial custody. As the detenu himself was
 absconding, he cannot take advantage of his own wrong.
 The detenu having surrendered on account of the notice
 issued against his mother i.e. the surety, there was
 no impediment for the detenu to furnish a fresh surety
 and get himself released on bail at any time. The
 bail granted to the detenu was not cancelled and,
 therefore, it was not necessary for the Detaining
 Authority to record his satisfaction again as to
 whether the Order of Detention need to be executed or
 not.

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 7. One thing is very clear from the explanation
 furnished by the detaining authority that there was no
 record regarding satisfaction of the detaining
 authority about the need of execution of the detention
 order in August, 2004, that is to say, after surrender
 of the detenu consequent to the notice issued to his

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 surety. The fact that the detenu could have availed
 bail by furnishing some other surety was considered by
 the detaining authority for the first time while
 preparing the affidavit in reply to the writ petition
 filed by the detenu. The said fact was not considered
 at any time before the actual execution of the order
 of detention. At the same time, the order of
 detention was undisputedly issued because the detenu
 was already released on bail, and therefore, he was a
 free person and by remaining at large and being a
 criminal, he was likely to revert to the activities
 prejudicial to the maintenance of public order. In
 the background of these facts on record, the rival
 contentions are to be considered as also the
 applicability of the judicial pronouncement sought to
 be relied upon.

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 8. In Binod Singh’s case (supra), it was held by
 the Apex Court that the power to impose preventive
 detention given to the appropriate authorities must be
 exercised in exceptional cases as contemplated by the
 various provisions of the different statutes dealing
 with preventive detention and should be used with
 great deal of circumspection. It was specifically
 ruled that there must be awareness of the facts
 necessitating preventive custody of a person for

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 social defence. If a man is in custody and there is
 no imminent possibility of his being released, the
 power of preventive detention should not be exercised.
 In the instant case when the actual order of detention
 was served upon the detenu, the detenu was in jail.
 There is no indication that this factor or the
 question that the said detenu might be released or
 that there was such a possibility of his release, was
 taken into consideration, by the detaining authority
 properly and seriously before the service of the
 order.

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 9. The Apex Court in Smt.Shalini Soni’s case

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(supra) held that "since all the constitutional
 protection that a detenu can claim is the little that
 is afforded by the procedural safeguards prescribed by
 Art.22(5) read with Art.19, the Courts have a duty to
 rigidly insist that preventive detention procedures be
 fair and strictly observed. A breach of the
 procedural imperative must lead to the release of the
 detenu."

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 10. In T.P.Moideen Koya’s case (supra), the Apex
 Court, after taking into consideration the various
 decisions including the decision in Binod Singh’s case
(supra), ruled that "the principle is that if a person

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 is in custody and there is no imminent possibility of
 his being released therefrom, the power of detention
 should not ordinarily be exercised. There must be
 cogent material because the authority passing the
 detention order for inferring that the detenu was
 likely to be released on bail." With these
 observations, the law laid down in Kamarunnissa v.
union of India, (AIR 1991 (SC) 1640 ) was also
 reiterated by reproducing the ruling therein to the
 effect that "even in the case of a person in custody a
 detention order can validly be passed (1) if the
 authority passing the order is aware of the fact that
 he is actually in custody; (2) if he has reason to
 believe on the basis of reliable material placed
 before him (a) that there is a real possibility of his
 being released on bail, and (b) that on being so
 released he would in all probability indulge in
 prejudicial activity, and (3) if it is felt essential
 to detain him to prevent him from so doing. If the
 authority passes an order after recording his
 satisfaction in this behalf, such an order cannot be
 struck down on the ground that the proper course for
 the authority was to oppose the bail and if bail is
 granted notwithstanding such opposition to question it
 before a higher Court." The Apex Court further
 referring to the facts in Moideen Koya’s case (supra)

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 held that the detenu therein had found a device for

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 surrendering and therefore along with a surety
 appeared in the Court of ACJM where the surety
 withdrew his consent and the detenu was remanded in
 custody till 17the September, 2002. In those facts,
 it was observed that "a detention order which has been
 validly passed cannot be rendered invalid on account
 of the own conduct of the detenu of absconding and
 evading service. That apart, the ACJM had passed the
 order of remand only till 17-9-2002 and thereafter
 there was possibility of his being released or at any
 rate the petitioner could furnish another surety in
 place of one who had withdrawn his consent and
 thereafter he would have been released from custody.
 The bail granted to the petitioner in the case under
 Customs Act had not been cancelled. This is not a
 case where the petitioner may have been taken into
 custody in connection with some serious criminal case
 where there may be no immediate possibility of his

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 getting bail." Obviously, in Moideen Koya’s case

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(supra), undoubtedly, there was surrender of the
 detenu consequent to the withdrawal of the consent of
 the surety and he was remanded to custody till a
 specific date. Being so, the detenu could have
 availed the bail by furnishing fresh surety. In
 addition, there was already bail granted to him in

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 customs cases. Besides, he was not involved in any
 serious criminal case so as to cause any impediment
 for him to obtain the bail. Bearing in mind those
 factors, the Apex Court had held that the detention
 order was not invalid nor it was rendered invalid.
 That was not a case where the detaining authority had
 absolutely failed to consider the effect of the events
 subsequent to the passing of the detention order. On
 the contrary, the observations made by the Apex Court
 in the paragraph 22 of the decision, obviously,
 disclose certain facts which were taken into

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 consideration by the detaining authority, and those
 facts had occurred subsequent to the issuance of the
 detention order. In the case in hand, as already
 observed above, the affidavit in reply filed by the
 detaining authority discloses that after issuance of
 the detention order and before execution thereof, the
 detaining authority nowhere considered the effect of
 lapse of time and the effect of the events which had
 occurred subsequent to the passing of the order of
 detention. All those facts were considered for the
 first time only after filing of the petition. In
 fact, to a specific query to the learned APP to point
 out the contemporaneous records in relation to the
 statement made by the detaining authority in its
 affidavit-in-reply pertaining to the events subsequent

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 to the issuance of the detention order, the learned

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 APP fairly conceded that no such records are
 available. This apparently discloses that the
 petitioner is justified in contending that the
 detaining authority did not apply its mind to the
 effect of lapse of time as well as to the events which
 had occurred subsequent to the issuance of detention
 order till the date of execution of the detention
 order, inspite of the fact that nearly one year had
 elapsed from the date of issuance of the order of
 detention till the execution thereof, and the
 petitioner had been already in custody on the date of
 execution of the order of detention.

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 11. As rightly submitted by the learned Advocate

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 for the petitioner, the Apex Court in no uncertain
 terms had observed as long back as in 1980 in Shalini
Soni’s case (supra), the rigid compliance of the
 procedure prescribed for detention of a person in
 exercise of the powers under the law relating to
 preventive detention is expected and to be insisted
 upon. It is well settled law that for the purposes of
 detention of a person, it is absolutely necessary for
 the detaining authority to be subjectively satisfied
 about the necessity of issuance of such orders against
 the concerned person. Once it is shown that there was

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 considerable lapse of time from the date of issuance
 of the order of detention till the date of its
 execution coupled with the changes in the
 circumstances relevant for the enforcement of such
 powers, certainly it is obligatory for the detaining
 authority to comply with the necessary procedure with
 all strictness which it requires and deserves. In the
 case in hand, it is apparent that even though the
 order of detention was essentially issued on account
 of the petitioner being on bail, and therefore, he is
 a free person, yet such an order of detention was
 executed nearly one year after the issuance of the
 order of detention while the petitioner was in custody
 without considering as to whether in the changed
 circumstances, the execution of such order was at all
 necessary, at that stage. This clearly justifies the
 contention of the petitioner that the detention of the
 petitioner being without application of mind was
 illegal, and therefore, he will be entitled for
 forthwith release from the detention.

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 12. Before we part with the matter, it is
 necessary to deal with the aspect regarding the
 affidavit filed by one of the authorities in reply to
 the petition. Drawing attention to the paragraph 4 of
 the affidavit filed by Shri Satish Narayan Pawaskar,

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 Under Secretary, Home Department (Special), Government
 of Maharashtra, Mantralaya, Mumbai, it was submitted
 by the learned Advocate for the petitioner that the
 contents thereof disclose that the report in terms of
 the provisions of law comprised under Section 3(3) of
 the MPDA Act was received from the detaining authority
 to the Government on 1st October, 2004 and the
 approval was granted by the Government on 10th
 October, 2004. Referring to the same, it was also
 sought to be contended that in view of the said clear
 admission by the sponsoring authority that the report
 regarding the order of detention was made beyond the
 period of 12 days from the date of making of the
 order, the order itself is liable to be quashed and
 set aside, and on that count, the petitioner is
 entitled for being released from the detention.
 However, it is not necessary to consider this
 contention in view of the fact that we have already
 held that the petitioner is entitled to be released
 forthwith for the reasons mentioned above. However,
 in reply to this argument, the learned APP has
 submitted that there was a mistake in typing the date
 in the said paragraph 4 of the sponsoring authority
 and instead of typing the year of 2003, it was typed
 as the year of 2004 in relation to the date of receipt
 of the report under Section 3(3) of the MPDA Act as

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 well as in relation to the date of approval order
 issued by the Government and in that regard, attention
 was drawn to the affidavit of the detaining authority
 Shri A.N.Roy, Commissioner of Police, Brihan Mumbai,
 and in particular to paragraph 5 thereof, wherein it
 is stated that "a report under Sub-section (3) of
 Section 3 of the said Act, to the Government of
 Maharashtra on 1.10.2003. The State Government was
 pleased to approve the Order of Detention on 8.10.2003
 and was further pleased to confirm the said Order of
 Detention on 8.10.2004." Apparently, there are two
 contradictory statements regarding the date of
 submission of the order to the State Government by the
 detaining authority under Section 3(3) of the MPDA Act
 as well as the date of approval of the order by the
 Government. The learned APP has also produced the
 records in that regard, and perusal thereof evidently
 discloses that the report was submitted on 1st
 October, 2003 and the approval was granted by the
 Government on 10th October, 2003. Obviously,
 therefore, the statement made by Shri Satish Narayan
 Pawaskar, Under Secretary, Home Department (Special),
 Government of Maharashtra, Mantralaya, Mumbai, to the
 effect that the date of receipt of the report to be
 1st October, 2004 and the approval thereof by the
 Government to be on 8th October, 2004 is not correct.

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 13. The Section 3(3) of the MPDA Act clearly
 requires the detaining authority who has been
 delegated powers under Section 3(2) of the MPDA Act to
 forward the order within 12 days after making thereof
 to the State Government for approval by the law.
 Being so, the date in relation to the issuance of the
 order, submission and approval by the Government
 assume great importance while considering the issue
 regarding compliance of the procedure prescribed under
 the MPDA Act. Being so, the authorities filing
 affidavits are certainly expected to disclose true and
 correct facts with utmost sense of responsibility.
 The Deponent Shri Satish Narayan Pawaskar, Under
 Secretary, Home Department (Special), Government of
 Maharashtra, Mantralaya, Mumbai, apparently did not
 take necessary precaution in disclosing the true facts
 pertaining to the dates of submission of the report
 and the approval by the Government in relation to the
 detention order. In fact, this is not the first time
 that we have come across incorrect statement in the
 affidavit of Shri Satish Narayan Pawaskar. He had
 filed the affidavits in other detention petitions also
 and in some of those affidavits, we have noticed such
 incorrect statements. Though the attempt is made by
 the learned APP to contend that the said statements

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 were on account of typing mistake, such an explanation
 by the learned APP in relation to the affidavits filed
 by the Government Officers cannot be accepted. The
 affidavit is a statement of fact by the Deponent and
 in order to have sanctity to the statement of fact,
 the affidavits are required to be verified before the
 officer authorised to administer the oath.
 Undoubtedly, these affidavits are affirmed on oath by
 Shri Satish Narayan Pawaskar, Under Secretary, Home
 Department (Special), Mantralaya, Mumbai. It is also
 to be noted that an incorrect statement can mislead
 the Court as also amount to a false statement in which
 case, the Deponent can invite proceedings for contempt
 of Court as was held by the Apex Court in Hiralal
Chawala & Anr. v. State of U.P. & Ors., reported in
 (1990) 2 SCC 143 as well as in U.P.Res.Emp.Co-op.
House B. Society & Ors. v. New Okhla Indus. Deve.
Authority & Anr., reported in AIR 2003 SC 2723.

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 14. However, on assurance by the learned APP, at
 this time, that henceforth the Government officers
 will ensure that no such mistakes are committed in
 their affidavits, we refrain ourselves from issuing
 any direction for action in this matter against the
 said officer, at this time. However, henceforth, in
 case any such mistake comes to our notice in an

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 affidavit of the said officer, we will have no
 hesitation in taking appropriate action against the
 concerned officer.

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 15. In the result, the Petition succeeds. The
 order of detention of the petitioner-detenu is hereby
 quashed and set aside. The Respondents are directed
 to release the petitioner-detenu forthwith unless
 required in any other matter. The rule is made
 absolute accordingly with no order as to costs.

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 ( R.M.S.Khandeparkar, J )

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 ( P.V.Kakade, J )

Raja @ Rajesh Rajan Nair v. R.S. Sharma and Ors.

Case brief

What is this about?

What did the court decide?

Raja @ Rajesh Rajan Nair v. R.S. Sharma and Ors.

Case brief

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