Anil @ Antya v. The State Of Maharashtra Others

Page 1270

1. Rule. By consent heard forthwith.

2. By the present petition, the petitioner has put to challenge the order of his detention in District Jail, Buldana, made by respondent no.2 on 1.10.2007 under the provisions of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (for short the Act) so also the order of confirmation thereof dated 15.11.2007 made by the 1st respondent.

3. Briefly stated, the P.S.O. Police station Buldana initiated a proposal with respondent no.2 for taking action against the petitioner under the provisions of the said Act on the ground that about 20 cognizable and 10 non- cognizable offences were registered against the petitioner and the petitioner is a violent dreaded criminal in the habit of assaulting common people and creating terror. The last offence that was indicated as a prejudicial activity was committed by him on 18.4.2007 in Crime No.84 of 2007 under Section 392 of Indian Penal Code. Acting on the said proposal, the 2nd respondent made an order on 1.10.2007 ordering detention of the petitioner under the said Act. The order came to be served and executed on the petitioner Page 1271 on the same day, namely 1.10.2007. Thereafter on 5.10.2007 the respondent no.1, as required under Section 3 of the Act, approved the order dated 1.10.2007. On 26.10.2007 the petitioner made a representation which was addressed to the Advisory Board, Govt. of Maharashtra, Mumbai, and it is stated that in fact the said representation was tendered by the petitioner during the course of hearing before the Advisory Board. The Detaining Authority had also relied on the statements of witnesses recorded in camera on 15.8.2007 and 17.8.2007. On reference being made to the Advisory Board on 11.10.2007 the Advisory Board had rendered its opinion on 13.11.2007 that was received by respondent no.1 on 13.11.2007. The same was then considered by the 2nd respondent on 14.11.2007 and the 1st impugned order of confirmation was issued by the respondent.

4. Submissions on behalf of petitioner : Mr. Kalwaghe, learned Counsel for the petitioner, made the following submissions in support of writ petition

(i) The last prejudicial activity of the petitioner is said to have taken place on 18.4.2007 and the order of detention came to be made on 1.10.2007-after almost about 5 months and thus the live link is snapped and the detention order becomes illegal.

(ii) The affidavits in reply filed by the respondents to the present writ petition read together do not show any explanation for the delay that has caused in passing the order of detention and confirmation thereof and, therefore, the detention order must fall to the ground.

(iii) The affidavits in reply on behalf of respondents 1 and 2 have been sworn by Sunil Ramrao Shelke, Naib Tahsildar from the office of Collector of Buldana, which is contrary to the law laid down by the Apex Court. The last affidavit of W.H. Bansode, Under Secretary, Govt. of Maharashtra, dated 10.3.2008 filed by respondent no.1 refers only to a limited aspect after the proceedings of the Advisory Board. Hence the order of detention has been vitiated on this ground also.

(iv) Even assuming but not admitting that computation has to be made from the date of in-camera statements recorded by police prior to the passing of the detention order, the delay from recording of such statements, i. e. from 17.8.2007 to 1.10.2007 has not at all been explained, though in ground (d) of the writ petition the petitioner has taken specific plea thereof.

The learned Counsel for the petitioner placed reliance on several decisions of the Apex Court as well as of this Court, but it is not necessary for us to reproduce them here since the relevant judgments to the point that will be decided in the instant writ petition would be considered. He prayed for allowing the writ petition.

5. Submissions of A.P.P.:

Per contra, Mrs. Joshi, learned A.P.P., vehemently opposed the writ petition and argued that the period has to be computed from the date Page 1272 of recording in- camera statements and not from the last prejudicial activity. For this purpose, she relied on several authorities and in particular various Division Bench decisions of this Court. Drawing our attention to several Division Bench decisions of this Court, Mrs.Joshi argued that if this Court desires to differ with the view taken in the said decisions, then the only way out was to refer the matter to the Larger Bench. She then argued that delay by itself cannot be a ground for quashing the detention order and that too in mechanical fashion. Facts of each case will have to be examined and, according to her, in the instant case the computing period from the in-camera statement dated 15.8.2007 and 17.8.2007, and passing of detention order on 1.10.2007 can hardly be said to be of any consequence. That delay is routine administrative delay and cannot lead to quashing of detention order. She then argued that serious offences are registered against the petitioner and the witnesses have been hesitant and rather frightened because of the criminal activities of the petitioner to come forward and give statements against him and according to her that explains the delay, if any, from the date of recording of in-camera statement. She then argued that the Advisory Board heard the petitioner and the petitioner tendered his representation before the Advisory Board which was never forwarded to the Government and, therefore, no fault can be found out with the Government in not considering the representation which was not addressed to the Government, but was addressed to the Advisory Board.

6. Mrs. Joshi also relied upon several decisions of the Apex Court as well of this Court. Since we would cite only relevant decision on the point that is being decided in this petition, it is not necessary for us to reproduce all those decisions.

7. Consideration : Having heard the learned Counsel for the petitioner and learned A.P.P., at the outset we must make it clear that we do not propose to decide several points urged before us by the learned Counsel for the rival parties, since according to us, the order of detention in question is liable to be quashed only on one ground. In that view of the matter, we therefore hold that it is not necessary for us to decide several points raised before us during the course of hearing of this writ petition.

8. From perusal of the records and the submissions made before us, it is clear that the last prejudicial activity took place on 18.4.2007. It is claimed by the respondents that the in-camera statements were recorded on 15.8.2007 and 17.8.2007 and that period cannot be computed from 18.4.2007 but will have to be calculated from 15.8.2007 and 17.8.2007. Now examining this proposition, we advert to the pleadings in the writ petition. Ground (d) in the writ petition, extract of which, reads thus:

...But the respondent no.2 i.e. the detaining authority has passed the impugned detention order on 01.10.2007. Therefore there is delay of about 5 months and 12 days in passing the impugned order Page 1273 of detention. It is important to note that the respondent no.2 has not assigned any explanation of inordinate delay caused in passing the impugned order.

In answer to this ground, the reply that is filed by respondent no.2 reads thus:

The submissions made in the instant ground that there is ordinate delay in passing the confirmation of detention order is without any basis. The order has been passed within the statutory period as provided by the Act. It is humbly submitted that there is live and approximate link between the activity of the petitioner and the detention order passed. The petitioner is a dangerous person and it was therefore necessary to detain him so as to prevent him from indulging in similar activities in future.

9. At this stage, we must express our concern about the failure on the part of respondents in not filing the affidavit of the Competent Officer concerned with the detention matter of the petitioner. The affidavit is sworn by Sunil Ramrao Shelke, who is working as Naib Tahsildar in the office of Collector, Buldana, We deprecate this practice and request the Chief Secretary of the State to look into the matter and not to allow repetition of such mistake, particularly in the detention matters where fundamental right of a citizen is examined by the Court.

10. We have gone through all the affidavits filed by the respondents and we find that from 17.8.2007 till 01.10.2007 except for a statement that after recording of in-camera statements, the proposal was forwarded to the 2nd respondent on 22.8.2007, there is absolutely no explanation for the period from 22.8.2007 till 01.10.2007. All the affidavits in reply are totally silent on this issue. In the absence of any explanation for the delay that is caused between the said period, we will have to hold that the said delay is fatal and the order of detention must stand vitiated. We propose to rely upon para 14 of the decision of Supreme Court in Pradeep Nilkanth Paturkar v. S. Ramamurthi and Ors. 1993 Supp (2) SCC 61, which reads thus:

Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order.

We also propose to follow the Division Bench decision of this Court in Sanjay s/o Balaram Kirale v. State of Maharashtra and Ors. 2001 Cri.L.J. 3779. Paras 7 and 8 thereof are as under:

We refer to the decision of the Apex Court in case of Smt. Hemlata Kantilal Shah v. State of Maharashtra . The Apex Court has held that the delay ipso facto in passing the Page 1274 order of detention after the incident not fatal to the detention of a person for in certain cases delay may be unavoidable or reasonable. What is required by law is that the delay must be specifically explained by the detaining authority. We also refer to the decision of the Supreme Court in Pradeep Nilkanth Paturkar v. C.S. Ramamurti wherein the Apex Court found that when the plea of delay in issuance of the detention order is taken and the delay is not explained, whether short or long, the order should be quashed.

We have thus come to the conclusion that in the absence of any explanation for the delay that is caused from 18.8.2007 till 01.10.2007, the order of detention cannot be supported. In the light of the view we have taken, we have no alternative but to allow this petition on this sole ground.

11. In the result, writ petition is allowed. The impugned orders dated 01.10.2007 (Annexure B) and 15.11.2007 (Annexure-F) are quashed and set aside. The petitioner be released forthwith, if not required in any crime. Rule is made absolute in above terms.

Registrar (J) is directed to send a copy of this judgment to the Secretary, Home Department (Special), Government of Maharashtra, Mumbai, for information.