Cases referred :
M. Ahamedkutty Vs. Union of India 1990 (2) Supreme Court Cases 1 [ 6 ]
Abdul Sathar Ibrahim Manik vs. Union of India AIR 1991 SC 2261 [ 7 ]
Advocates appeared :
Shri U.N. Tirpathi with Shri P.K. Joshi, Advocates for the petitioner.
Shri E.P. SAWANT, Public Prosecutor for the respondent nos. 1,2 and 3.
Barde, J. :- The petitioner is challenging the order of detention issued against him by the Commissioner of Police, Aurangabad, on 9-9-1999, under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (For short, hereinafter referred to as the Act.)
2. The learned Counsel for the petitioner, Shri Tripathi , has placed reliance on one circumstance to challenge this order of detention. He has pointed out that the grounds for detention are enumerated by the Commissioner of Police as per annexure C wherein it is specifically mentioned that the grounds are stated in para nos. 4 and 5 of the said document. The paragraph no.4 refers to Crime No. 17/99 registered at Jinsi Police Station, Aurangabad , for offences punishable under Sections 307, 384, both read with Section 34 of Indian Penal Code. It is mentioned that the detenu was arrested on 2-2-1999 and then he was remanded to Police custody till 6-2-1999 and thereafter he was released on bail.
3. The learned Counsel for the petitioner has further argued that in the various documents which were placed before the Commissioner of Police, the application for bail presented by the detenu and the order passed by the learned Additional Sessions Judge granting him bail, were not included. Annexure D is the index of the documents which were placed before the Commissioner of Police and copies of which were also given to the petitioner by the authorities. In the annexure D, there is only reference to copy of F.I.R. No. 17/99, dated 2-2-1999 and it does not indicate that the application for bail and the order granting bail were placed before the Commissioner of Police for consideration of order for detention.
4. The learned Counsel for the petitioner has further argued that the application for bail and order releasing the detenu on bail are the documents of vital importance. If those would have been taken into consideration by the detaining authority, then the authority might have come to different conclusion. However, the authority was deprived of taking into consideration those documents. Not only that the detenu is also deprived of making out of his case because copies of those documents were not supplied to him also.
5. The learned Counsel for the petitioner has further argued that the order of detention is based on the various instances which were brought to the notice of the Commissioner of Police. The opening sentence of para 6 is as follows:-
After considering your activities and its effect from all angles and the gravity of the questionable activities of yours to judge whether your activities are prejudicial to the maintenance of public order, and, from the above facts and record placed before me, I am satisfied that you are a Dangerous Person as defined in the said Act, and, you being at large is prejudicial to the maintenance of public order in the city as defined in the said Act.
While the opening sentence of para 7 reads as follows:
I have carefully gone through the material placed before me and I am subjectively satisfied that you are acting in a manner prejudicial to the maintenance of public order and in view of your tendencies, and ascending trend reflected in the offences committed by you.
So, this wording of the grounds for detention clearly indicated that the Commissioner of Police has taken into consideration all the activities of the petitioner to form his opinion as to whether the petitioner should be detained or not and, in such circumstances, if the vital documents like the application for bail and the order of bail releasing the petitioner on bail were not before the commissioner, then his contention that he has gone through all the material, cannot be accepted to be correct. So, prejudice is caused to the detenu. The vital bail order was not placed before the Commissioner of Police and so, the order must be set aside.
6. In support of this contention, the learned Counsel for the petitioner has relied upon the ruling of the Apex Court, in the matter between M. Ahamedkutty Vs. Union of India & another (1990)2 Supreme Court Cases 1). Paragraph No.27 is specifically relied upon by the learned Counsel for the petitioner, which reads as follows:
Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete. We have, therefore, no alternative but to hold that it amounted to denial of the detenus right to make an effective representation and that it resulted in violation of Article 22(5) of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case.
7. The learned Counsel for the petitioner has also relied upon ruling of Apex Court, in the matter between Abdul Sathar Ibrahim Manik vs. Union of India & others (AIR 1991 SC 2261), and he has specifically pointed out that the Apex Court has laid down six important points which the Court has to take into consideration while dealing with an order regarding detention and the sixth point reads as follows:-
In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should be supplied to the detenu.
8. The learned Counsel for the petitioner has, therefore, argued that as the application for bail and the order releasing the petitioner on bail were not before the commissioner of police, this is a fit case in view of the rulings of the Supreme Court to quash the order of detention.
9. Shri E.P. Sawant, learned public Prosecutor, has argued that there is only reference to the order of releasing the petitioner on bail. However, that was not taken into consideration by the Commissioner of Police to pass the final order regarding detention. Only those documents on which the Commissioner of Police has relied upon for passing order of detention, are considered by him and the copies of those documents are properly supplied to the detenu. Therefore, the above quoted two rulings of the Apex Court are not applicable to the present case.
10. We fail to understand that how a document which is vital to consider whether it is a fit case to pass an order of detention cannot be taken into consideration by the Commissioner of Police especially when he has specifically made reference that the detenu was released on bail by the Court. The learned Counsel for the petitioner has rightly argued that if the order releasing the detenu on bail had been before the Commissioner of Police, he would have formed some different opinion than the opinion which is formed by him. For the purpose of substantive satisfaction of the authority, all the relevant documents must be there and the order releasing on bail is one of the most relevant document. We find much force in the contention of the learned Counsel for the petitioner. The order of detention is passed without making any reference to the application for bail and the order releasing the detenu on bail, passed by the learned Additional Sessions Judge.
11. Not only Crime No. 17/99 is mentioned in the grounds of detention, but the actual incident is relied upon by the Commissioner of Police. From para No.8 of the affidavit filed by the Commissioner of Police, it appears that the subsequent things which had taken place after that alleged incident are also taken into consideration by the Commissioner of Police. But the vital circumstance, that the detenu was released on bail, inspite of all these things, was not taken into consideration by the Commissioner of Police.
12. Hence, Criminal Writ Petition No. 380/1999 is allowed. The order of detention passed by the Commissioner of Police, Aurangabad , against the petitioner, on 9-9-1999 , is quashed and set aside. He be released forthwith, if not required in any other case.
13. Rule absolute accordingly.
Petition allowed.