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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1974 OF 2017 Shri Taufiq Ismail Shaikh @ Pailwan, Age 47 years, Indian Inhabitant, R/o 145, Railway Line, Solapur.. At present in Yerwada Central Prison.
…
Petitioner.
…
Respondents.
V/s. 1.
Ravindra Sengaonkar, Commissioner of Police, Solapur.
2.
Sr.Inspector of Police, MIDC Police Station, Solapur.
3.
The State of Maharashtra Through the Additional Chief Secretary (Home), Mantralaya, Mumbai 32.
4.
The Superintendent, Yerwada Central Prison, Pune.
5.
The Secretary, Hon'ble Advisory Board, C/o. Desk Officer, Desk 10, Home Department (Special), Mantralaya, Mumbai 32.
Dadhichi S. Mhaispurkar for the petitioner. Ms.M.H.Mhatre, APP for the respondents.
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CORAM :
A.S.OKA AND RIYAZ I. CHAGLA, JJ.
DATE :
12th September 2017.
ORAL JUDGMENT: (PER A.S. OKA, J.) Heard the learned counsel for the petitioner and learned APP for the respondents. 2.
The petitioner by this petition filed under Article 226 of the
Constitution of India has taken an exception to the order dated 20 th March 2017 passed by the Commissioner of Police, Solapur under subsection (1) of section 3 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 (for short “the said Act”). By the said order, the petitioner was ordered to be preventively detained under the provisions of the said Act. 3.
In support of the petition, the learned counsel appearing for
the petitioner has pressed into service two grounds of challenge, namely, grounds B and C, which read thus: “B) That the detenu was arraigned as an accused in CR No.514/2016 registered at Sadar Bazar Police Station, Solapur on 16.10.2016. The detenu was arrested in the said case on 25.11.2016. Thereafter the detenu was arrested in CR no 517/2016 on 28.11.2016. The detenu was released on bail on
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30.12.2016. Thereafter detenu was released on bail on 1.3.2017. Statements of incamera witnesses were recorded on 24.2.2017 and 25.3.2017, those statements were verified by the concerned ACP on 27.2.2017. Thereafter the order of detention was issued by the detaining authority on 20.3.2017, by relying upon the documents running into about 846 pages, including the translation of most of the documents in Marathi. The last document placed before the detaining authority was dated 1.3.2017, as such it was virtually impossible for the detaining authority to issue the detention order on 20.3.2017, after applying his mind and arriving at his subjective satisfaction and also to serve the same after getting the papers translated on 20.3.2017, due to paucity of time. Therefore, the detaining authority has issued the detention order hurriedly, mechanically and without application of mind. The impugned order of detention as issued is, thus, per se punitive in character, null and void. C) That it appears that the detaining authority has not formulated the grounds by himself, and has issued the order on the basis of the ground already formulated by the sponsoring authority or has merely copied the proposal as forwarded by the sponsoring authority.” (underline supplied) His submission based on factual aspects set out in ground B is that the impugned order of detention has been passed hurriedly, mechanically and without application of mind. His contention is that considering the factual aspects, the detaining authority has not himself formulated the grounds of detention. The submission is that the order of preventive detention is punitive in character and hence, illegal.
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The learned APP invited our attention to the additional
affidavit filed by the detaining authority which is dated 16th August 2017. The proposal along with compilation of documents was placed before the detaining authority for consideration and after going through the same, the detaining authority dictated the grounds of detention which were placed before him on 20th March 2017. She submitted that the allegation that the order of detention was made mechanically and hurriedly and without application of mind has no basis at all. 5.
Considering the nature of the grounds, we have carefully
perused the original file produced by the learned APP. The first 14 pages of the file record what transpired upto the stage of the detaining authority signing on the impugned detention order. It appears that on 1 st March 2017, the Assistant Commissioner of Police, Zone1 made a recommendation for initiating action of preventive detention against the petitioner under the said Act. On 2 nd March 2017, the Zonal Deputy Police Commissioner made a noting that the petitioner was a dangerous person and also a slumlord within the meaning of the said Act and, therefore, it is necessary to preventively detain him. On 3 rd March 2017, there was an endorsement made by the Commissioner of Police on the said noting made by the Zonal Deputy Police Commissioner. The endorsement is to the effect “Pl put up”. On 6 th March 2017, the Senior Inspector of Police, Crime Branch made a noting on the file. There is a detailed noting dated 7th March 2017 on pages 7 to 10 signed by the Commissioner of Police (detaining authority) in which he has purported to
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record his satisfaction that there is no option but to detain the petitioner preventively under the said Act so as to maintain public order. He recorded that “Hence the proposal is approved”. In the said note/ order, the Commissioner of Police referred to the criminal activities of the petitioner since the year 1989. He has referred to incamera statements of the witnesses and has noted that he is convinced that the proposed detenu was “a dangerous person” and “a slumlord”. Thus, on 7 th March 2017 itself, the detaining authority has recorded his subjective satisfaction that it is necessary to detain the petitioner under the provisions of the said Act. There is no noting made on 7 th March 2017 to the effect that the grounds of detention were formulated either by the detaining authority or any one else. On page11, there is noting dated 9 th March 2017 by the Inspector of Police of Crime Branch. He has recorded that that as per the directions of the Commissioner of Police, the documents accompanying the proposal have been scrutinized and draft of grounds of detention in English and Marathi languages has been prepared which is submitted. Below the said noting, the Assistant Commissioner of Police (Crimes) has noted that the draft of reasoned order (probably the grounds of detention) has been annexed which has been submitted for perusal and passing orders. Below the said noting, there is a noting made by the Deputy Commissioner of Police (Crimes) recommending that the petitioner may be detained under section 3(1) of the said Act. The date of the said noting is 15th March 2017. Below the said noting on page17, the detaining authority has made a note, which reads thus: “DFA appd(.) pl put up final draft of grounds for detention(.) Detention orders be put up at earliest.”
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The learned APP, on instruction, states that “DFA” means a draft. On the very next page i.e. page14, the Senior Inspector of Police, Crime Branch has noted in Marathi that final reasons (final grounds of detention), the detention order and committal order have been prepared which are presented to the detaining authority for perusal and signature. Below the said noting, there is an endorsement by the detaining authority made on 20th March 2017, which reads thus: “Appd(.) DFA signed(.) Final order/Detention Order signed”
6.
Perusal of the file shows that though the final proposal was
not put up before the detaining authority on 7 th March 2017, by a written order, the detaining authority recorded his subjective satisfaction about the necessity of preventively detaining the petitioner under the said Act. As on the date, the grounds of detention were not even formulated either by the sponsoring authority or by the detaining authority. It appears that on 9th March 2017, the draft grounds of detention were formulated by the Inspector of Police, Crime Branch which were approved by the Assistant Commissioner of Police on 14th March 2017. On 16th March 2017, the noting of the detaining authority is that the said draft is approved by him and final draft of the grounds of detention and the detention order be put up before him. On 20th March 2017, the final draft appears to have been signed by the detaining authority along with the order of detention. 7.
Thus, it is crystal clear that on 7th March 2017, the detaining
authority by passing an order in writing recorded that he was subjectively
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satisfied that there is a need to preventively detain the petitioner. Thereafter, on 9th March 2017, the grounds of detention were formulated by an Officer of Police (Inspector of Police, Crime Branch). The said grounds were approved on 14th March 2017 by the Assistant Commissioner of Police (Crimes). The said grounds were put up before the detaining authority on 16th March 2017 when he approved the same. We may note here that noting dated 9 th March 2017 shows that on that day, the Inspector of Police, Crime Branch made scrutiny and verification of the documents submitted along with the proposal. There are 17 documents running into 752 pages (page 95 to 846). Even before the documents were scrutinized and verified, on 7 th March 2017, a subjective satisfaction was already recorded by the detaining authority without even formulating the grounds of detention. 8.
In his affidavit in reply, the detaining authority has dealt with
grounds B and C. The detaining authority in paragraph9 and 10 of his affidavit has stated thus: 9.
….. ….. ….. ….. ….. ….. ….. It is stated that thereafter the proposal was prepared by the Sponsoring Authority and was forwarded to A.C.P. Division 1, for scrutiny on 28.02.2017. He made his endorsement on 01.03.2017 and forwarded to D.C.P., who in turn scrutinized and made his endorsement on 02.03.2017. Thereafter, the said proposal was placed before me, I being then detaining authority gave my approval on 07.03.2017. After getting approval being then detaining authority, the simultaneous work of preparation of necessary sets of documents by getting
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them typed, Xeroxed etc. were started by Police Inspector of Crime Branch, Solapur City. Thereafter the necessary sets of documents were made ready, the same was submitted along with the proposal for the detention of the present detenu to A.C.P. (Crime) on 14.03.2017. Thereafter, the said proposal was forwarded to D.C.P. (Crime) for perusal and scrutiny who made endorsement on 15.03,2017. On 16.03.2017, the proposal along with its compilation was placed before me. I being then detaining authority once again carefully gone through the entire material and after his subjective satisfaction came to the conclusion that it is absolutely necessary to issue order of detention against the detenu to prevent him from further indulging into prejudicial activities, the said authority dictated final grounds of detention, which was made ready and placed before the then Detaining Authority on 20.03.2017. I being then detaining authority once again carefully went through the draft of detention order and the papers accompanying the same and after his subjective satisfaction, issued Order of Detention contemporaneously on 20.03.2017. Hence, time taken for considering the present proposal and issuing the order is reasonable. In view of the facts and circumstances, the order of detention was issued immediately and promptly by me. Thus, there is no substance in the say of the Petitioner in this Para. 10. With reference to grounds 18(C) of the petition, it is denied that the Detaining Authority has not formulated the grounds by himself.......” (underline supplied)
In the said affidavit, the detaining authority has not stated that on 7 th March 2017 he recorded a subjective satisfaction as stated above. He
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merely stated that on 7th March 2017, he granted approval. Thereafter, the preparation of necessary sets of documents by getting them typed and photocopied was started. After necessary sets were made ready, the same were submitted along with the proposal to the Assistant Commissioner of Police on 14th March 2017. On 16th March 2017, the detaining authority claims that the proposal was submitted before him when he dictated the grounds of detention. His statement is factually incorrect. In fact, the grounds of detention were never dictated by the detaining authority himself as is seen from the original file which shows that on 9th March 2017, after the detaining authority recorded his subjective satisfaction on 7th March 2017, the grounds of detention were formulated by the Inspector of Police, Crime Branch. Even the contention in paragraph10 of the affidavit that the detaining authority had drafted the grounds himself cannot be accepted as it is completely contrary to what can be seen from the file. We fail to understand as to how the subjective satisfaction could have been recorded by the detaining authority even before the proposal prepared by the sponsoring authority was fully ready. In fact, draft grounds were prepared by the Police Officer after socalled subjective satisfaction was recorded by the detaining authority. The subjective satisfaction could have been recorded only on the basis of the grounds of detention after the grounds of detention were dictated. But when the detaining authority recorded his satisfaction on 7th March 2017, the grounds were not even dictated and formulated. Therefore, in our view, the impugned order of preventive detention is vitiated.
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9.
Accordingly, we pass the following order: O R D E R (i)
Rule is made absolute in terms of prayer clause (a)
which reads thus: a) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate writ, order or directions, for quashing and setting aside the said order of detention bearing No.04/CB/DPSL/2017, dated 20.03.2017 and be pleased to direct that the detenu, Shri Taufiq Ismail Shaikh @ Pailwan be set at liberty.” (ii)
All the concerned to act upon an authenticated copy of
the operative part of the judgment and order.
(RIYAZ I. CHAGLA, J.)
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(A.S.OKA, J.)
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