Challenge to a preventive detention order under the MPDA Act. The court rejected the pleas that the detenu's representation was decided with unexplained delay and that his acts of extortion, kidnapping and intimidation did not affect public order; it held the grounds severable and upheld the detention.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRI. WRIT PETITION NO. 2980 OF 2016
Viki Baban Galte ] Age 25 years, residing at ] Shanti Sagar Vasahat, Bankar Colony ] Hadapsar, Pune ].. Petitioner
Vs.
| 1. The Commissioner of Police, | ] |
|---|---|
| Pune | ] ] |
| 2. The State of Maharashtra | ] |
| (Through Addl. Chief Secretary | ] |
| to Government of Maharashtra | ] |
| Mantralaya, Home Department, | ] |
| Mantralaya, Mumbai 3. The Superintendent, |
] ] ] |
| Nasik / Kolhapur Central Prison, | ] |
| Nasik / Kolhapur. | ]..Respondents |
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Mr. Udaynath Tripathi Advocate for Petitioner Mr. J.P.Yagnik A.P.P. for the Respondents
CORAM : SMT.V.K.TAHILRAMANI &
REVATI MOHITE DERE, JJ. DATED : JANUARY 18, 2017
ORAL JUDGMENT [ PER SMT. V.K.TAHILRAMANI,J.] :
preferred this petition questioning the preventive detention order passed against him on 26.4.2016 by the Respondent No.1 i.e. Commissioner of Police, Pune. The said detention order has been passed in exercise of powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons & Video Pirates, Sand Smugglers and Persons engaged in BlackMarketing of Essential Commodities Act, 1981 (Mah. Act No. LV
of 1981) (Amendment-1996), (Amendment – 2009),
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(Amendment – 2015) (hereinafter referred to as “MPDA Act”) as the detenu is a dangerous person whose activities are prejudicial to the maintenance of public order. The said detention order is based on 3 C.Rs. and 2 incamera statements of witness “A” and witness “B”. The three CRs. are CR No. 43 of 2016, CR No. 127 of 2016 and CR No. 128 of 2016. The order of detention, grounds of detention along with accompanying documents were served on the detenu on 26.4.2016.
3 Though a number of grounds have been raised in the present petition whereby the detention order has been assailed, however, the learned counsel appearing for the petitioner has pressed only five grounds before us. They are ground Nos. 5(f), 5(i), 5(d), 5(h) and 5(b). Ground Nos. 5(f) and 5(i) are regarding delay in considering the representation. It is contended that there is inordinate delay in considering the representation, hence, the detention order ought to be
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quashed and set aside. In ground 5(d) and Ground 5(h), it is stated that activities of the detenu did not affect the public order, hence, the detention order is vitiated. In ground 5(b) it is stated that though in the opening paragraph of grounds of detention, it is stated that the detention order is based on the material disclosed in paragraphs 4 and 5 of the grounds of detention, however, if paragraphs 6, 7 and 9 of the grounds of detention are examined, it becomes clear that the detaining authority has considered extraneous material and hence, the order of detention is illegal and bad in law and liable to be quashed and set aside.
4 Mr. Tripathi learned counsel appearing on behalf of the petitioner has submitted that on account of delay in considering the representation, the valuable right of the petitioner to get his representation decided as expeditiously as possible is violated and as such, the order of detention cannot be continued. He submitted that the representation of the
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detenu dated 5.8.2016 was sent by him by speed post on 5.8.2016, however, the representation was rejected on 26.8.2016 i.e. after a delay of 21 days. Mr. Tripathi submitted that there was delay in the representation reaching the State Government. He further submitted that there was a delay in deciding the representation after the same was received by the State Government.
5 The representation was posted on 5.8.2016 and it was received by Mantralaya on 10.8.2016. This is on account of postal delay and the delay cannot be attributable to the Government. The Supreme Court in the case of Abdul Nissar Vs. State of Tamil Nadu reported in 1999 (8) SCC 473 has held that delay due to postal vagaries or any inefficiency of postal system is not attributable to the Government nor can inaction be attributed to the Government.
6 The delay in considering the representation from
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10.8.2016 to 26.8.2016 has been explained by Shri. Suresh Khade Deputy Secretary, Home Department (Special), Mantralaya, Mumbai by filing two affidavits. Affidavit affirmed on 5.10.2016 was filed in relation to ground 5(f), however, thereafter the petition was amended and ground 5(i) was added in relation to delay in considering the representation. This ground was replied by filing additional affidavit which was affirmed on 12.1.2017. In the said affidavit, it is stated that the representation of the detenu dated 5.8.2016 was received by the Registry of the Home Department on 10.8.2016 and the representation was rejected on 26.8.2016. Mr. Yagnik, the learned A.P.P. appearing for the Respondents submitted that the representation made to the State Government was attended to as expeditiously as possible and there was no delay on the part of the authorities concerned in deciding the said representation. He took us through the relevant dates as well as the affidavits and submitted that on consideration of the relevant dates, the representation was attended to as
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expeditiously as possible and there was no delay much less; inordinate delay on the part of the State Government in arriving at a decision on the representation. He submitted that after the receipt of the representation on 10.8.2016, the same was scrutinized in the Central Registry and thereafter it was marked to Visha-3(b) Desk (MPDA Desk) on the very same day i.e. 10.8.2016. Thereafter it was marked to another Clerk to take entry in the register on 11.8.2016. The Registry Clerk took entry on 12.8.2016. Mr. Yagnik submitted that there is only one clerk dealing with Outward despatch to the various departments in Mantralaya. He submitted that letters are received everyday by the hundreds in the Central Registry which are scrutinized, segregated and then sent to the Outward despatch clerk to be entered in the outward despatch register. After entry in this register, the letter is sent to the despatch section which sends it to the concerned department. Mr. Yagnik the learned A.P.P. produced files before us which
show that the outward entry of the letter to MPDA Desk was
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made on 12.8.2016. There were holidays on 13.8.2016 (Second Saturday), 14.8.2016 (Sunday) and 15.8.2016 (Independence day). The representation was sent to dispatch section on 16.8.2016 by the Registry. As there was holiday on 17.8.2016 (Pateti / Parsi New year) it was sent to Visha-3(b) Desk (MPDA Desk) on 18.8.2016 by the Registry. Thus the representation was received by MPDA Desk on 18.8.2016. Thereafter the remarks were called from the detaining authority i.e. Commissioner of Police, Pune vide letter dated 18.8.2016. The detaining authority was asked to submit its remarks immediately. It may be stated that the Home Department is in Mumbai and detaining authority is from Pune. The remarks of the detaining authority were received on 22.8.2016 vide letter dated 20.8.2016. Thereafter the concerned Assistant submitted the file containing remarks of the detaining authority along with the representation of the detenu to the Section Officer on 22.8.2016. The Section Officer endorsed it on 22.8.2016 and forwarded it to the Deputy
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Secretary on the same day. The Deputy Secretary endorsed it on 22.8.2016 and forwarded it to the Additional Chief Secretary (Home) on the very same day. The Additional Chief Secretary (Home) was busy on 23.8.2016 and 24.8.2016 due to some very urgent office work. On the next day i.e. on 25.8.2016 it was a holiday on account of 'Dahi Handi', therefore, on 26.8.2016 the Additional Chief Secretary (Home) considered the representation of the detenu and the remarks of the detaining authority and rejected the representation on 26.8.2016 after applying his mind. The rejection of the representation was communicated to the detenu vide letter dated 26.8.2016.
7 Mr. Tripathi submitted that there are two pockets of delay. The first delay is after the Registry received letter of the detenu on 10.8.2016, the representation reached MPDA Desk on 18.8.2016. Thus, he submitted that there was a delay of 7 days. As far as this aspect is concerned, it is seen that in
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between this period of 7 days, 4 days were holidays i.e. 13th , 14th , 15th and 17th August, 2016 and after excluding these holidays, there was a delay of 3 days in this period. The Supreme Court in a number of decisions has excluded holidays while computing delay. Some of these decisions are in the case of (1) Noor Salman Makani Vs. Union of India reported in (1994) 1 SCC 381 , (2) State of Tamil Nadu Vs. C. Subramani reported in A.I.R. 1992 SC 2161 . As far as this period from 10.8.2016 to 18.8.2016 is concerned, it is seen that the letter was received in the Central Registry. It is stated that hundreds of letters are received in the Central Registry of Mantralaya every day and more than hundred letters are pertaining to the Home Department. These letters have to be segregated and thereafter marked to the particular department to which it pertains. Thereafter, it would be entered in the Outward Register and then sent to the despatch section. The despatch section sends it to the concerned department. One clerk would scrutinize it in the Central Registry and then he decides to
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which department it belongs, and thereafter it would be sent to be entered in the Outward Register, thereafter sent to despatch department to be sent by outward dispatch to that particular department. Every entry has to be made in the outward register after which the letter can be sent to the concerned department. In the present case, it is seen that the representation was received on 10.8.2016 thereafter it was scrutinized and it was marked to MPDA Desk. The representation was sent to another clerk on 11.8.2016 to take entry in the outward register. Entry has to be made in the outward register and only then the letter can be sent to the MPDA Desk. Therefore, on the very next day i.e. on 11.8.2016 it was sent to the clerk to take entry in the outward register after which the letter was sent to the MPDA Desk. As stated earlier, hundreds of letters are received every day in the central Registry. Thereafter they are segregated and then sent to the concerned department, hence, the outward register clerk has to deal with all these letters which have been sent to
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each department in Mantralaya. Hence, it would take him sometime to make outward entry in the register because the communication of the detenu is not the only letter which is received by this clerk to be entered in the outward register and then to send to despatch section. The representation was sent to the clerk dealing with outward register on 11.8.2016 and on the very next day, he took entry in the register. However, it is seen that thereafter there were three holidays i.e. on 13th , 14th and 15th August, 2016. On 16th August, 2016 the letter was sent to the dispatch section by the Registry. Again on 17th
August, 2016 there was holiday, hence, it was received by the MPDA Desk on 18.8.2016. As stated earlier, the Supreme Court
in large number of decisions while computing delay has excluded holidays. Thus, it is seen that the period when the representation was received on 10.8.2016 to 18.8.2016, looking to the facts of this case, it can be said that the representation was attended to with utmost expedition.
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8 Mr. Tripathi then contended that after the
representation was received by the MPDA Desk, there is unexplained delay of two days i.e. 23rd and 24th August, 2016 on which dates, it is stated that the Additional Chief Secretary (Home) was busy on account of some very urgent office work, hence, he could not attend to the representation. It is seen that after the representation was received by MPDA Desk on 18th August, 2016, parawise remarks were called on the very same day and they were received on 22.8.2016. As parawise remarks had to be called from Pune, it would obviously take 3 to 4 days. Parawise remarks were received on 22.8.2016 and the representation was rejected on 26.8.2016. On 25.8.2016, there was holiday on account of 'Dahi Handi'. Thus, it is seen that at the most, it can be said that on 23.8.2016 and 24.8.2016 there is non-explanation for the delay as the nature of urgent office work has not been stated in the affidavit. However, we are of the opinion that even period of 23.8.2016 and 24.8.2016 has been explained by the authority by stating
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that there was some very urgent office work, we see no reason to disbelieve this reason. Even otherwise, at the most, it can be said that there is delay in considering the representation of only these two days i.e. 23.8.2016 and 24.8.2016. This delay of 2 days cannot be said to be such as to render the continued detention illegal.
9 Mr. Tripathi placed reliance on the decision of the Supreme Court in the case of Vijaykumar Vs. State of Jammu and Kashmir and others reported in (1982) 2 SCC 43 . He relied on the observations in paragraph 12 of the said decision wherein it is stated that the representation should reach the Government as quickly as possible and it should be considered by the authorities with equal promptitude. Any slackness in considering the representation which is not properly explained, would be denial of the protection conferred by the statute and
would result in invalidation of the order. Thus, this decision holds that if any delay is not properly explained, then it would
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result in invalidation of the detention order. In the present case, it is seen that the delay has been properly explained by the authorities. Even assuming that there is no explanation for 23rd and 24th August, unexplained delay of 1 or 2 days while deciding the representation of the detenu is not such as would vitiate the order of detention. 10 Thereafter Mr. Tripathi placed reliance on the decision of the Supreme Court in the case of Harish Pahwa Vs. State of Uttar Pradesh reported in (1981) 2 SCC 710 : AIR 1981 SC 1126 . He has placed reliance on paragraph 5 of the said decision. Mr. Tripathi pointed out that in the said case, there was no explanation at all as to why no action was taken in reference to the representation on 4th , 5th and 25th June 1980. It was also not clear what consideration was given by the Government to the representation from 13th June to 16th June. Thereafter in the case of Harish Pahwa (supra) , it was observed that it is not necessary to call for comments from other department or to seek opinion of the Secretary after
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Secretary and that it was not understood as to why representation travelled from table to table before it reaches Chief Minister who was the only authority to decide the representation. Thus, it is seen that in the case of Harish Pahwa (supra), there were three pockets of delay i.e. (1) 4th , 5th and 24th June, (2) 13th to 16th June, and (3) six days when the file travelled from table to table. The decision in the case of Harish Pahwa (supra) is a decision by a Bench of two Judges. A Three-judge Bench of the Supreme Court in the case of Kantilal Hirji Shah Vs. State of Tamil Nadu and others reported in ( 2000) 7 SCC 606 , has observed in paragraph 4 as under:
" ...........
It appears to us that the very fact that on receipt of the representation a comment was sought for from the sponsoring authority by an officer who had not passed the order of detention was itself treated to be the grounds for the conclusion that the representation has been dealt with in a routine manner and there was no application of mind by the competent officer. We cannot subscribe to the aforesaid conclusion expressed by the learned Judges in
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the aforesaid case. When a representation is received in the department of the concerned authority it is not necessary for the authority to whom the representation is made, himself to make entry in the diary and immediately deal with the matter without taking the assistance of any other subordinate officers. A detenu under Article 22(5) has a right that his representation should be considered by the appropriate authority as expeditiously as possible and there should not be unexplained delay in the matter of disposal of the representation. A Subordinate Officer calling for comments from any other authority does not, in fact, deal with the representation nor does it express any view on the representation and acts clerically only to get the necessary comments for being considered by the persons on whom the power to dispose of the representation vest. That being the position, and taking into account the system through which the Government functions, it is difficult for us to sustain the conclusion of this Court in Paulsamy's case in paragraph 6 quoted above. In our view, therefore, the fact that on receipt of the representation, the Joint Secretary of the department called for the comments of the sponsoring authority immediately and on receipt of the same had forwarded to the higher authority which was dealt with by the appropriate authority, would not constitute any infringement of the constitutional right of the detenu under Article 22(5) nor it can be said that the representation has been dealt with mechanically without application of mind. We therefore hold that the law laid down by this Court in aforesaid case is not correct. “
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11 Thus, from the decision in the case of Kantilal H.
Shah (supra) , it is clear that calling for parawise comments is not a futile exercise and on account of the system through which the Government functions, the file travels from one officer to another or to put it in other words file travels from table to table or from officer to officer and time during which the file travels in this way cannot be said to be unnecessary delay in considering the representation. Similar view was taken by this Court in the decision dated 18.11.2016 in Cri. Writ Petition No. 2312 of 2016 in the case of Naeem Abdulla
Khan Vs. The Commissioner of Police, Mumbai and Others.
On account of the system through which the Government functions, it is necessary for the file to travel from table to table i.e. from Junior Officer to the top most Officer. In any event, it is seen that in Harish Pahwa (supra), excluding the period during which the file travelled from table to table, there
was a delay of six days in considering the representation. In
the case in hand, there is delay of only two days and two days
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delay cannot be said to be such period as would vitiate the order of detention.
12 The Supreme Court in the case of Noor Salman Makani Vs. Union of India and others (supra), observed that “If we exclude these holidays then the delay comes to only five days which cannot be said to be undue and in our view, the High Court has rightly rejected this contention.” We have considered the rival submissions and the relevant material. In our view, the time taken to decide the representation has been properly explained and on consideration of the same, we are inclined to observe that the representation was attended to as expeditiously as possible and there was no delay, much less; unintentional, avoidable and unexplained delay of such nature as would vitiate the order of detention. We therefore, hold that the impugned order dated 26.8.2016 rejecting the representation of the detenu dated 5.8.2016 was passed by the concerned authority as expeditiously as possible and we are
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not inclined to hold that the valuable right of the detenu under Article 22(5) of the Constitution of India has been violated. In view of the above, we hold that the stand taken by the petitioner that there was delay in deciding the representation, cannot be accepted.
13 The next ground which is raised is that the activities of the detenu did not affect public order, hence, the detention order would be vitiated. This contention is raised in ground 5(d) and 5(h) of the petition. In ground (d) the contention is raised that CR No. 43 of 2016 on which the detaining authority has placed reliance, did not affect the maintenance of public order and in ground (h) the contention is raised that CR No. 127 of 2016 on which the detaining authority has placed reliance to issue the order of detention, did not affect the maintenance of public order, hence, detention order would be vitiated. In relation to the contention raised that the activities of the detenu did not affect public order, it is necessary to state
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that the detention order has been issued on the basis of 3 CRs. and 2 incamera statements. The three CRs. are CR No. 43 of 2016, CR No. 127 of 2016 and CR No. 128 of 2016 and in addition, the detention order is based on two incamera statements of Witness “A” and Witness “B”. As far as CR No. 127 of 2016 is concerned, it is under Sections 384, 506 read with Section 34 of IPC. In the said case, the complainant has stated that on 27.2.2016, the detenu threatened the complainant and asked him to meet the detenu. The complainant got scared and agreed to meet the detenu. When
the complainant met the detenu, the detenu and his accomplices threatened the complainant and demanded money from him. He was told that if he wants to do business, he should give 'Hafta' of Rs.5,000/- to the detenu. Mr. Tripathi submitted that this incident pertains to just one individual and it does not affect the society at large or a section of the public. However, it is seen that this CR i.e. CR 127 of 2016 is clearly a case of extortion. As far as activities of extortion is concerned,
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any person from the public can be a victim of extortion, hence, such activities are not limited to a private individual but they can affect the public at large, hence, activities of extortion would affect public order.
14 This Court in the decision in the case of Zebunissa Vs. M.N. Singh reported in 2001 (3) Mh.L.J. 365 has observed that the acts of extortion disturb public order can no longer be disputed. In the decision in the case of Amin Mohammed Qureshi Vs. Commissioner of Police, Bombay reported in 1994 Cri.L.J. 2095, the detenu was indulging in crimes like robbery, extortion and criminal intimidation. The Supreme Court held that these activities affected the maintenance of public order. Similar view was taken in Prabhakar Shetty Vs. S. Ramamurthy reported in 1993 (2) B.C.R. 3 and Sunil Patil Vs. Satish Sahney and others reported in 1996(3) All M.R. 426. Thus, we find no merit in the submission of Mr. Tripathi that incident relating to CR No. 127 of 2016 does not affect public
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order.
15 In Bhupendra Vs. State of Maharashtra reported in
(2008) 17 SCC 165 it is observed as under:
“8. 'Public order' is what the French call 'order publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?.....
…...The true test is not the kind, but potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State.....
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Ghosh Case reported in (1970) 1 SCC 98 : 1970 SCC (Cri.) 67 : (1970) 3 SCR 288. According to that decision the true distinction between the areas of 'law and order' and 'public order' is
'one of degree and extent of the reach of the act in question upon society'
The Court pointed out that (SCC p. 100,
para 3)
'the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different'.
16 As far as the third CR i.e. CR No. 128 of 2016 is
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concerned, it is a case of kidnapping. The complainant in the said case has stated that on 28.2.2016 at about 9.45 p.m. the complainant and his friends came to Rajguru Mitra Mandal Chowk and were having a chat. At that time, detenu and six accomplices came there with dangerous weapons such as “Koyata (sickle) and Bamboo”. The detenu abused the complainant and threatened him and asked why the complainant was looking at him angrily and what does the complainant think of himself. The detenu and his accomplices assaulted the complainant with 'Bamboo'. At that time nearby persons tried to intervene but the detenu threatened them and complainant's friends as well as the people at the spot by saying that if any one comes forward they would be killed with sickle. The detenu further stated that nobody should stop there. Due to this, the complainant's friends and the people at the spot, left the spot. The shop keepers shut their shops and people residing there closed the doors and windows of their houses. Then the detenu and his accomplices kidnapped the
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complainant and took him to nearby canal and there the detenu and accomplices abused and beat the complainant, due to which, the complainant received injuries. Thus, it is seen that in the incident relating to CR No. 128 of 2016 due to act of the detenu, people who had gathered at the spot, were frightened and they left the spot and shop keepers closed their shops and people residing in the area closed the doors and windows of their houses. Thus, it is seen that the act of the detenu did not only affect an individual but it affected a section of the public thus it affected public order.
17 In addition to 3 CRs., the detention order is based on the statements of witnesses “A” and “B”. Witness “A” has stated that the detenu has created a reign of terror in the area. The detenu and his 5 to 6 associates threatened petty businessmen and extorted money from them. Witness “A” has further stated that on 16.3.2016 at about 5.30 p.m. the detenu stopped witness “A” and asked him why he was staring at the
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detenu. The detenu and his associates started beating the witness with wooden shaft and iron pipe. On viewing the sight, the people present there ran helter skelter and shop keepers shut their shops and people residing there closed doors and windows of their houses. Then the detenu again beat witness “A” and extorted amount of Rs.4,000/- from him. Witness “A” was scared and cried out for help, however, due to terror of the detenu, no one came forward to help witness “A”. Thus, it is seen that the incident did not affect only witness “A” but it also affected the persons staying in the locality. Thus, the incident pertaining to witness “A” was such that it affected public order.
18 Witness “B” has stated that the detenu threatened petty businessmen and people and extorted money from them. The detenu had created a reign of terror in the areas of Hadapsar, Pune. Witness “B” has further stated that on 14.3.2016 when he was going towards Mahadevnagar, the
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detenu and his associates stopped him. They were holding Koyata and wooden shaft and iron rod. On seeing this, witness “B” was terrified and started running towards Annasaheb Magar College. The detenu chased witness “B” and caught him. Then the detenu and his associates abused and threatened witness “B”. Thereafter the detenu and his associates assaulted witness “B” with wooden shaft and with blunt side of Koyata. Witness “B” got scared and cried out for help but due to terror of the detenu, no one came forward to help the witness. On viewing the sight, the students from the college fled from the spot. The passersby who were at the spot, also got scared and fled away from the spot without helping witness “B”. The detenu then threatened witness “B” with Koyata and extorted Rs.6500/- from him. Thus, it is seen that the act of the detenu did not only affect witness “B” but it also affected the people in the locality and thus, it affected public order. In any event, the incidents pertaining to witness
“A” and witness “B” are also incidents of extortion and as
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stated above, the Supreme Court and this Court have observed that incidents of extortion affect public order.
19 As stated earlier, the detention order is issued on the basis of 3 CRs. and 2 incamera statements. The three CRs. are CR No. 43 of 2016, CR No. 127 of 2016 and CR No. 128 of 2016. We have already discussed above in detail the incidents relating to CR No. 127 of 2016 and CR No. 128 of 2016 as well as those relating to witness “A” and “B”. That leaves only CR No. 43 of 2016. We have already observed that the incidents relating to CR Nos. 127 and 128 of 2016 affect public order. We have also already observed that incidents relating to witness “A” and witness “B” also affect public order. This leaves us with only one CR i.e. CR No. 43 of 2016. On going through the facts relating to the said CR i.e. CR No. 43 of 2016, it does relate only to an individual and it has not affected the people in the locality or a section of the public, however, as stated earlier, the detention order is based on 3 CRs. and 2
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incamera incidents i.e. the detention order is based on five grounds. Thus, even if one ground is excluded i.e. pertaining to CR No. 43 of 2016, the detention order is sustainable on the remaining grounds.
20 Section 5A of the MPDA Act reads as under:
“ 5A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly-
(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-
( i ) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever,
and it is not, therefore, possible to hold that the State Government or an officer mentioned in subsection (2) of Section 3 making such order would
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have been satisfied as provided in Section 3 with reference to the remaining ground or ground and made the order of detention;
(b) the State Government or such officer making the order of detention shall be deemed to have made the order of detention under the said Section 3 after being satisfied as provided in that Section with reference to the remaining ground or grounds.”
21 Thus, even if it is assumed that the ground relating to CR No. 43 of 2016 is not relevant for issuing the detention order under the MPDA Act, the same can be severed in view of Section 5A of the MPDA Act. This would mean that the detention order is based on only 4 grounds. These 4 grounds, in our opinion, are sufficient for the detaining authority to reach his subjective satisfaction that it was necessary to detain the detenu under the provisions of MPDA Act as he is a 'dangerous person'.
22 The last ground raised by Mr. Tripathi is ground 5(b). In ground 5(b) it is stated that though in the opening paragraph
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of the grounds of detention, it is stated that the detention order is based on the material disclosed in paragraphs 4 and 5 of the grounds of detention, however, if paragraphs 6, 7 and 9 of the grounds of detention are examined, it becomes clear that the detaining authority has considered extraneous material and hence, the order of detention is illegal and bad in law and liable to be quashed and set aside.
23 In relation to this ground, it would be necessary to refer to paragraph 1 of the grounds of detention. In paragraph 1 of the grounds of detention, the detaining authority has clearly stated that the detention order has been passed on the grounds mentioned in paragraphs 4 and 5 below. Thus, it is seen that the detention order is not based on the averments in paragraphs 6, 7 and 9 of the grounds of detention. Mr. Tripathi submitted that in paragraph 6, it is stated that after going through the criminal record of the detenu, it is seen that he is a habitual and dangerous criminal involved in serious crimes
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which is seen from clauses 3 to 6 of the Chart. In paragraph 7 it is stated that “from the above facts, I am subjectively satisfied that you are a 'dangerous person' as defined in Section 2(b-1) of the said Act. You have unleashed a reign of terror and have become a perpetual danger to the society at large in the area of Hadapsar Police Station”. In paragraph 9 it is stated that “I hereby communicate to you as required under Section 8(1) of the said Act read with Article 22(5) of the Constitution of India, the aforesaid grounds on which detention order has been passed by me. The copies of documents placed before me are enclosed herewith except the identifying particulars of the witnesses in connection with grounds at paragraph No.5 of grounds of detention which cannot be furnished to you in the public interest for which I claim privilege as per Section 8(2) of the said Act read with Article 22(6) of the Constitution of India”. As stated earlier in para 1 of the grounds of detention itself, it is clarified that the detention order is based on the averments in paras 4 and 5. Thus the
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detention order has not been issued on the basis of any averments in para 6. Thus when in para 7 it is stated that the detaining authority has reached his subjective satisfaction on the basis of above facts, it means the facts as stated in paras 4 and 5 of the grounds of detention. In paragraph 9 when the detaining authority has stated that he is communicating the grounds, it means the grounds which are reflected in paras 4 and 5. Thus, we find no merit in this contention.
24 Mr. Tripathi thereafter submitted that in the compilation served to the detenu along with grounds of detention, the copies relating to the CRs. mentioned in paragraph 3 and the papers relating to 2 chapter cases mentioned in paragraph 3, have been furnished to the detenu. He submitted that this shows that the detaining authority has relied on these documents to issue the order of detention. As stated earlier, in para no.1 of the grounds of detention, the detaining authority has clearly stated that the detention order
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is issued on the basis of the material disclosed in para nos. 4 and 5 of the grounds of detention. In para no.9 of the grounds of detention, it is stated that “copies of documents placed before me are enclosed herewith. From para 9 it is clear that all the documents which were placed before the detaining authority, all copies of those documents have been furnished to the detenu. The detaining authority has not stated anywhere in the grounds of detention that the copies of the documents relied upon by him are enclosed with the grounds of detention and he has merely stated that the copies of the documents “placed” before him are enclosed with the grounds of detention. On going through the grounds of detention, it is clear that the detaining authority has relied only on averments in paragraphs 4 and 5 of the grounds of detention to issue the order of detention. Just because additional documents are furnished to the detenu, it does not mean that the detaining authority has relied on these documents to issue the order of detention. The detaining authority has made it clear that he
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has relied only on incidents reflected in paras 4 and 5 of the grounds of detention. The detaining authority has further clarified that all documents placed before him have been furnished to the detenu. Thus, we find no merit in this ground.
25 In view of the above, we are of the opinion that no
good ground has been made out for quashing the order of detention, hence, petition is dismissed. Rule is discharged.
[ REVATI MOHITE DERE, J.] [ SMT.V.K.TAHILRAMANI,J. ]
kandarkar
36
3 issues framed by the court
Whether the delay in considering the detenu's representation violated his right under Article 22(5) and vitiated the order of detention?
Whether the activities of the detenu affected public order or were confined to individuals?
Whether the detaining authority relied on extraneous material, and whether an irrelevant ground could be severed under Section 5A of the MPDA Act?
Colour shows how this judgement treated each authority
Abdul Nissar Vs. State of Tamil NaduRelied on¶5
1999 (8) SCC 473 · Who else cites this
Noor Salman Makani Vs. Union of IndiaRelied on¶7
(1994) 1 SCC 381 · Who else cites this
State of Tamil Nadu Vs. C. SubramaniRelied on¶7
A.I.R. 1992 SC 2161 · Who else cites this
Vijaykumar Vs. State of Jammu and Kashmir and othersDistinguished¶9
(1982) 2 SCC 43 · Who else cites this
Harish Pahwa Vs. State of Uttar PradeshDistinguished¶10
(1981) 2 SCC 710 : AIR 1981 SC 1126 · Who else cites this
Kantilal Hirji Shah Vs. State of Tamil Nadu and othersRelied on¶11
(2000) 7 SCC 606 · Who else cites this
Naeem Abdulla Khan Vs. The Commissioner of Police, Mumbai and OthersFollowed¶11
Cri. Writ Petition No. 2312 of 2016
Zebunissa Vs. M.N. SinghRelied on¶14
2001 (3) Mh.L.J. 365 · Who else cites this
Amin Mohammed Qureshi Vs. Commissioner of Police, BombayRelied on¶14
1994 Cri.L.J. 2095 · Who else cites this
Prabhakar Shetty Vs. S. RamamurthyRelied on¶14
1993 (2) B.C.R. 3
Sunil Patil Vs. Satish Sahney and othersRelied on¶14
1996(3) All M.R. 426
Bhupendra Vs. State of MaharashtraRelied on¶15
(2008) 17 SCC 165 · Who else cites this
4 provisions across 2 enactments
Viki Baban Galte
The Commissioner of Police, Pune
The State of Maharashtra
The Superintendent, Nasik / Kolhapur Central Prison
V.K. Tahilramani
Revati Mohite Dere
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
