Judgment:
Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner who describes himself as brother of the detenu Kailash Mangiram Jadhav has impugned the order dated 12.1.2001 passed by the first Respondent Mr. M. N. Singh, Commissioner of Police, Greater Bombay, detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981) (Amendment 1996) (hereafter referred to as the M.P.D.A. Act).
The detention order along with the grounds of detention, which are also dated 12.1.2001, was served on the detenu on 18.1.2001 and their true copies are annexed as Annexures A and B respectively to this petition.
2. The prejudicial activities of the detenu which prompted the first respondent to pass the impugned order are contained in grounds of detention (Annexure B).
A perusal of Annexure B would show that the impugned detention order is founded on three C. Rs. namely C. R. No. 61/2000 under sections 341, 323, 504, 34 of the I.P.C. registered on the basis of a complaint dated 24.2.2000 lodged by Benthu Fernandes at Byculla police station Bombay, C. R. No. 141/2000 under section 326 of the I.P.C. registered on the basisof a complaint dated 11.5.2000 lodged by Deepak Shivram Waghmare at Byculla police station and C. R. No. 213/2000 under section 332, 506(II) of the I.P.C. registered on the basis of a complaint dated 17.7.2000 lodged by Head Constable Subhash Dattatray Deshinukh at Byculla police station and in camera statement of two witnesses, namely A and B, which were recorded on 1.9.2000 and 2.9.2000 respectively.
Since in our view, a reference to the prejudicial activities of the detenu contained in the said C. Rs. and the in camera statements is not necessary for the adjudication of ground No. 6(B) of the petition, on which ground in our view this writ petition deserves to succeed, we are not adverting to them.
3. Ground No. 6(B) in short is that in between the second in camera statement dated 2.9.2000 and 12.1.2001. the date on which the impugned order was passed, there is a gap of nearly 41/2 months and on account of the said gap the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has been snapped resulting in the detention order being rendered unsustainable in law. To fortify his submission, pleaded in ground No. 6(B), Mr. Tripathi learned counsel for the petition brought to our notice the decision of the Smt. Hemlata Kantilal Shah v. State of Maharashtra and another,. He specifically invited our attention to the following lines which appear at page 13 of the said decision :
'Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the Detaining Authority.'
Mr. Tripathi urged that since in this case there has been no satisfactory explanation from the side of the respondents regarding the delay in the issuance of the detention order, the impugned order has been rendered Illegal and cannot be sustained in law.
4. Ground No. 6(B) has been replied to in para 10 of the return of the Detaining Authority.
A perusal of the said para would show that the second in-camera statement was recorded on 2.9.2000. On 4.9.2000, the proposal for detaining the detenu was forwarded through proper channel. On 5.9.2000, it was placed before the Dy. Commissioner of Police, Zone - III who on the said date gave his endorsement. Thereafter, the papers came to be forwarded to the Senior Inspector of Police, P.C.B., C.I.D., Bombay who after going through them prepared a detailed note and forwarded them to the Dy. Commissioner of Police, (Preventive) vide his endorsement dt. 19.9.2000.
The delay between 5.9.2000 and 19.9.2000 is sought to be explained by averring that 9.9.2000 and 10.9.2000 were holidays and on 12.9.2000. there was Ganesh Chaturthi and consequently for next ten days, the Sr. P. I. P.C.B., C.I.D., Bombay was busy with bundobust on account of Ganesh Utsav.
The Dy. Commissioner of Police after receiving the papers on 19.9.2000 put his endorsement thereon on 22.9.2000; 23.9.2000 and 24.9.2000 were holidays; and thereafter the papers were forwarded to the Additional Commissioner of Police (Crime) who went through them and gave hisendorsement on 28.9.2000. Thereafter, he forwarded the papers to the Joint Commissioner of Police who gave his endorsement thereon on 30.9.2000.
1.10.2000 was a holiday. On 2.10.2000 the papers were put up before the Detaining Authority and on 9.12.2000, he carefully went through them and gave his opinion that it was a fit case for detention. Thereafter, the Detaining Authority formulated. the draft grounds of detention. Since 10.12.2000 was a holiday, the papers were forwarded to the Sponsoring Authority on 11.2.2000 for fair typing, translation of the documents in a language known to the detenu etc. After the said work had been completed, the papers were received by the Sr. P. I. P.C.B., C.I.D.. Mumbai on 8.1.2001 who after checking put them before the Additional Commissioner of Police (Crime) vide his endorsement on 8.1.2001 itself. The Additional. Commissioner of Police, Bombay went through them; put his endorsement thereon on 9.1.2001; and on the same date submitted the papers to the Detaining Authority.
On 12.1.2001, the Detaining Authority passed the detention order.
At the end of para 10 of his return, the Detaining Authority has averred that in view of the said explanation, there has been no delay in the issuance of the impugned order and at any rate, bearing in mind the propensity and potentiality of the detenu to indulge in similar prejudicial activities in future, the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has not been snapped.
5. We have perused the averments contained in ground No. 6(B) of the petition: those contained in para 10 of the return of the Detaining Authority; and heard learned counsel for the parties.
In our view, there has been an Inordinate delay at the level of the Detaining Authority and the explanation furnished by him in para 10 of his return is not satisfactory and plausible. In the said para the Detaining Authority has admitted that the papers were received by him on 2.10.2000. He has also admitted therein that it was only on 9.12.2000 after going through the papers and the proposal, he gave his endorsement in terms that the detenu was required to be detained under section 3(1) of the M.P.D.A. Act.
The only explanation which the Detaining Authority has furnished as to why it took him 2 months and 9 days to give a green signal to the proposal is that in between there were 9 holidays i.e. on 8.10.2000, 15.10.2000, 22.10.2000, 29.10.2000, 6.11.2000, 12.11.2000, 19.11.2000,26.11.2000 and 3.12.2000.
6. We have examined the said explanation and are constrained to observe that even if it is accepted and the 9 holidays are excluded, the painful reality, from which the Detaining Authority cannot shy, is that the proposal was pending with him for 2 months and he has offered no explanation as to why it was pending with him for so long.
In our judgment, this period of 2 months is inordinately long and shows that the Detaining Authority was oblivious of the promptitude with which he should have dealt a preventive detention proposal.
7. It should be borne in mind that eternal vigilance is the price the law expects from Detaining and Sponsoring Authorities if they want a preventive detention to be sustained by this Court in exercise of its jurisdictionunder Article 226 of the Constitution of India. In their lethargy lies the liberty of the detenu.
We are afraid that on the face of the explanation furnished by the Detaining Authority in para 10 of his return, to which we have adverted to in detail earlier, it cannot be denied that the Detaining Authority has shown lethargy and indolence, in dealing with the preventive detention proposal pertaining to the detenu, which has thrown a cloud of doubt on the genuineness of his subjective satisfaction to detain the detenu under section 3(1) of the M.P.D.A. Act.
8. We would be failing in our fairness if before parting with this judgment, we do not deal with Mrs. Tahilramani's submission that bearing in mind the propensity and potentiality of the detenu to commit similar prejudicial activities, the live link between his prejudicial activities and the rationale of clamping a detention order on him has not been snapped by a mere delay of about four and a half month on the part of the Detaining Authority in issuing the impugned detention order and therefore the detention order has not been rendered unsustainable in law.
To fortify her submission, Mr. Tahilramani brought to our notice the observations contained in para 14 of the judgment of the Supreme Court, rendered in the case of Abdul Salam @ Thiyyan v. Union of India and Others., which read thus :
'That apart we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention, the Court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the Detaining Authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground. ....'
9. We have considered Mrs. Tahilramani's submission. The said observations would show that the aspect of potentiality is certainly relevant so long as the delay is not highly unreasonable. In our view, on the face of the explanation set out in para 10 of the return of the Detaining Authority, the delay in the instant case is highly unreasonable. That apart, it has not been satisfactorily explained in terms of Hemlata Kantilal's case (supra).
10. For the said reasons, we do not find merit in Mrs. Tahilramani's submission.
11. For the said reasons, in our view, there has been an inordinate delay on the part of the Detaining Authority in issuing the impugned detention order. On account of the said delay, in our judgment, the genuineness of the subjective satisfaction of the Detaining Authority to detain the detenu has been rendered suspect, the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him has been snapped and the detention order has ceased to be preventive, as it should be in law, and instead has become punitive.
12. For the foregoing reasons, we quash and set aside the impugned detention order; direct that the detenu - Kailash Mangilal Jadhav be released forthwith if not wanted in some other case; and make the rule absolute.