Smt. Savita Shankar Lokhande Vs. Shri M.N. Singh, Commissioner of Police, Greater Bombay and ors. - Court Judgment

Excerpt:
maharashtra prevention of dangerous activities of slumlords, bottleggers, drug offenders and dangerous persons act, 1981 (amendment 1996) - section 3(1) - detention order - delay of 7 months for clamping detention order from the date of incident - no satisfactory explanation for delay - live link between the prejudicial activities and the rationale of clamping detention order snapped - detention order ceases to be preventive but becomes punitive - detention order quashed.; delay in passing the detention order need not be explained on day-to-day basis, but it all depends on the nature of the acts relied on grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action.;in the present case it is seen that the detaining authority accepted the proposal to detain on 13.6.2000 but the formal order came to be passed only on 5.8.2000 and no explanation is offered for such delay. if it was so essential to detain the detenu so as to prevent him from indulging in any act of prejudicially affecting the maintenance of public order, surely the authorities were expected to act, with utmost dispatch and not with such laxity.;in the present case the detaining authority has failed to furnish any satisfactory explanation with respect to delay in issuance of the detention order. as a necessary corollary, it will have to be assumed that the subjective satisfaction recorded by the detaining authority was not genuine and that the live link between the prejudicial activities of the detenu and the rationale of clamping the detention order, which is a draconian action, qua the detenu, cannot stand the test of judicial scrutiny. if such a detention order, were not to be quashed, the detention under the said order would cease to be preventive but assume the colour of being a punitive action, which cannot be countenanced in law. in the circumstances, the impugned detention order is required to be quashed. - - it clearly shows that the detenu has not indulged in any prejudicial activities after the alleged incident of january, 2000 and there was no need for the detaining authority to take such strict measures of preventive detention against the detenu. accordingly, the then detaining authority started going through all such matters and after being subjectively satisfied that there was nexus between the prejudicial activities and issuance of the order of detention. the additional commissioner of police endorsed it on 1.8.2000 and thereafter it was put forward before me. the petitioner has relied on the decision of the apex court as well as decisions of this court to contend that such delay in passing of the order of detention is fatal, unless explained to the satisfaction of the court. if the court is satisfied with the said explanation, then it will have to consider the question of existence of casual connection. it is true that the principle applicable while considering the delay in passing the order of detention would be different than the situation when delay in execution of the order is complained of. only on 31,7.2000. in other words, there is absolutely no explanation for the inaction between 13.6.2000 till 31.7.2000. from the aforesaid facts we are more than convinced that the authorities were absolutely inactive and observed laxity between 26.4.2000 to 15.5.2000 and again between 20.5.2000 to 5.6.2000 and lastly from 13.6.2000 till 31.7.2000. this inaction clearly doubts the genuineness of the subjective satisfaction recorded by the detaining authority. the legal position is that if the delay is unexplained, whether short or long especially when a specific plea of delay in issuance of the detention order has been taken, is sufficient to quash the detention order, as observed by the apex court in 1994crilj620 .10. in the present case we have no hesitation in recording that the detaining authority has failed to furnish any satisfactory explanation with respect to delay in issuance of the detention order.a. m. khanwilkar, j. 1. by this writ petition, under article 226 of the constitution of india, the petitioner, the wife of shankar @ shankrya ramchandra lokhande (hereinafter referred to as the detenu), has challenged the order of detention passed by shri m. n. singh, commissioner of police, brihan mumbai, dated 5.8.2000 against the detenu under section 3(1) of the maharashtra prevention of dangerous activities of slumlords. bootleggers. drug offenders and dangerous persons act, 1981 (hereinafter referred to as m.p.d.a. act). 2. although several grounds have been raised in the writ petition, however, in our view, it would be futile to embark upon detail investigation into each one of them, for we are inclined to accept the plea that the detention order is vitiated and deserves to be set aside because of the inordinate and unexplained delay in passing the same. we would therefore, confine our discussion in the present judgment only with regard to the said question.3. for considering the question raised before us, it is wholly unnecessary to advert to the grounds of detention furnished to the detenu along with the impugned order of detention. briefly stated, the relevant facts are that the detenu was arrested on 18.1.2000 in connection with criminal case registered against him being c.r.no. 23 of 2000. it is not in dispute that, on the same day the detenu was enlarged on bail by a court of competent jurisdiction. however, the detenu came to be arrested pursuant to the impugned order of detention dated 5.8.2000, on 8.8.2000. in this background it is urged that the detention order is based on the incident which relates back to 7 months, that too in respect of which the detenu has been enlarged on bail on 18.1.2000. according to the petitioner there is inordinate delay in passing of the impugned order of detention on account of which the genuineness of the subjective satisfaction recorded by the detaining authority with regard to the existence of the live link is under a cloud. the ground in this regard has been articulated in para (ix) of the writ petition, which reads thus :-'(ix) the petitioner says and submits that the alleged incident has taken place on 11th january, 2000 and the said order is issued on 5th august, 2000 i.e. after a lapse of seven months after the incident. as a result the delay in issuing an order has snapped the live link between the said alleged incident and the need for detention. it is also shown that the detaining authority was not serious while issuing the said impugned detention order against the detenu and as a matter of routine the said order has been issued. the petitioner further submits that during the period of seven months between the alleged incident and the issuance of order, no offence has been registered against the detenu.it clearly shows that the detenu has not indulged in any prejudicial activities after the alleged incident of january, 2000 and there was no need for the detaining authority to take such strict measures of preventive detention against the detenu. the petitioner says that the said delay of seven months has vitiated a subjective satisfaction of the detaining authority.'4. in response to the writ petition the respondents have filed in all three affidavits. amongst the said affidavits, reliance was placed on para 14 of the affidavit of shri m. n. singh, commissioner of police, the detaining authority, which commences from page 52 and ends at page 59 of the paper book. the substance of the said affidavit for explaining the delay in passing of the impugned detention order asserts that although the incident referred to in the grounds of detention is of 11.1.2000, in respect of which the detenu was arrested on 18.1.2000 and came to be released on the same day, however, two in-camera statements came to be recorded on the 16th and 18th of march, 2000 respectively in connection with separate incidents which took place on 2.2.2000 and last week of december, 1999 implicating the detenu. it is further stated that after the said in-camera statements were recorded, the sponsoring authority submitted proposal on 28.3.2000. the proposal was submitted to the deputy commissioner of police. zone v, who after examining the same made endorsement thereon on 2.4.2000. it is further stated that after 2.4.2000 till 26.4.2000 the concerned authorities were awaiting the decision of the apex court on the issue of whether it is mandatory to apprise the detenu of his right to make representation to the detaining authority in the grounds of detention itself. it is stated that the said position became clear only on 26.4.2000 when the order passed by the apex court on 20.4.2000 was received by the then detaining authority and only thereafter the authority decided to review the proposal to detain the detenu which was pending consideration. what happened after 26.4.2000 till the passing of the impugned order of detention on 5.8.2000 can be seen from the averments of the affidavit at pages 55 to 57, which is reproduced thus :'i say that a copy of the said order was received by the then detaining authority on 26.4.2000. after going through the same, it was decided to review number of detention matters which were pending before the then detaining authority for issuance of detention orders. accordingly, the then detaining authority started going through all such matters and after being subjectively satisfied that there was nexus between the prejudicial activities and issuance of the order of detention. 1 say that the papers were forwarded to the additional commissioner of police. he carefully went through all the papers and gave his endorsement thereon on 15.5.2000.(f) i say that thereafter the papers came to be forwarded to the senior inspector of police, p.c.b., c.i.d. he carefully went through all the papers and prepared a detailed typed note and forwarded the papers to the deputy commissioner of police (p), he did so by endorsement dated 20.5.2000 (on 18.5.2000 was holiday). the deputy commissioner of police (o) carefully went through the papers and gave his endorsement on 5.6.2ooo and forwarded the papers to the additional commissioner of police (crime) (21, 27, 28 of may and 4th of june. 2000 were holidays). the additional commissioner of police (crime) gave his endorsement after considering the proposal and all the papers on9.6.2000. thereafter the papers were forwarded to the joint commissioner of police, he gave his endorsement on 9.6.2000. after the endorsement was given by the joint commissioner of police, all the papers were put up before me. thereafter he started carefully perusing all the papers. (g) i say that on 13.6.2000, i carefully went through the proposal and all the papers and he was of the opinion that it was a fit case for detention and he gave his endorsement to that effect on 13.6.2000 (10 and 11 june, 2000 were holidays). i say that the detaining authority carefully went through all the papers and the proposal and formulated the draft grounds of detention. all the papers were then forwarded to the sponsoring authority on 31.7.2000 for the purpose of fair typing, for preparing the translation of the documents in the language known to the detenu and for preparing the necessary sets of documents etc. (h) as stated earlier the proposal of the present detenu hence after completing all necessary work in the matters i.e. typing, translation etc. the necessary sets of documents were received as per the procedure in the office of senior p.i. p.c.b., c.i.d. on 31.7.2000. the senior inspector of police, p.c.b., c.i.d., mumbai, checked all thedocuments and, it to additional commissioner of police. the additional commissioner of police endorsed it on 1.8.2000 and thereafter it was put forward before me. after going through the entire material on 5.8.20001 issued the orderof detention.' 5. from the affidavits filed before us on behalf of the respondents it would appear that the proposal to detain the detenu was activated only after recording of the two in-camera statements on 16th and 18th march, 2000 respectively. a formal proposal to detain the detenu was submitted on 28.3.2000. however, since there was some doubt about the legal requirement, no further steps were taken till 26.4.2000. from the explanation offered for period subsequent to 26.4.2000 it would appear that no explanation is offered as to what transpired between 26.4.2000 to 15.5.2000, 20.5.2000 to 5.6.2000 and 13.6.2000 to 31.7.2000. the counsel for the petitioner, therefore, submits that there is inordinate and unexplained delay in passing of the impugned order of detention which inevitably affects the genuineness of the satisfaction recorded by the detaining authority. it is submitted that the petitioner was on bail since 18.1.2000 and came to arrested pursuant to the order of detention only on 8.8.2000, which is after a gap of around 7 months. the petitioner has relied on the decision of the apex court as well as decisions of this court to contend that such delay in passing of the order of detention is fatal, unless explained to the satisfaction of the court. the learned counsel contends that even giving full benefit to the detaining authority for the period upto 28.3.2000. when the proposal was initiated by the proposing authority, even thereafter the movement of the proposal was at a snails speed. according to him such laxity will have to be viewed seriously particularly when the detenu was on bail, for it would inevitably affect the genuineness of the satisfaction recorded by the detaining authority. it is further argued that due to the distance of time from the date of incident in question the live link had snapped and therefore the order of detention cannot stand the test of judicial scrutiny. he further contends that, assuming that the detaining authority has some explanation to offer for this delay, however, admittedly, no explanation has been offered by the detaining authority for the time taken from 2.4.2000 till 26.4.2000. he submits that the stand taken by the respondents that some legal issue was pending before the apex court cannot be a justification for excusing the delay or the inaction during this period. it is further submitted that at any rate no explanation whatsoever has been offered for the period between three major blocks; 26.4.2000 to 15.5.2000, 20.5.2000 to 5.6.2000, and 13.6.2000 to 31.7.2000. it is further argued that it is imperative upon the detaining authority to explain the delay, whether short or long, especially when the petitioner had taken a specific plea of delay. he contends that this is not a case where some explanation is offered for the aforesaid blocks which explanation is not satisfactory, but a case where no explanation whatsoever has been offered for the aforesaid periods. therefore, according to him, this is a sufficient reason to doubt the genuineness of the subjective satisfaction recorded by the detaining authority. the petitioner has placed reliance on the decision of the apex court in pradeep nilkanth paturkar v. s. ramamurthi and ors., to buttress the aforesaid submission. besides the decision of the apex court the petitioner has also relied on two decisions of our high court in raju gnanasekaran v. c. d. singh and ors., and savita prakash manjrekar v. r. h. mendonca and ors...6. the learned counsel for the respondents on the other hand contends that adequate explanation has been offered by the detaining authority for the time required for passing the impugned order, and no latches or inaction can be attributed to the detaining authority. it is contended that delay ipso facto in passing the order of detention is not sufficient. but, the delay, if any, can be explained by the detaining authority on affidavit; and. if the court is satisfied with the said explanation, then it will have to consider the question of existence of casual connection. only then it would be open for the court to quash the order of detention on the ground of delay in passing the same.7. considering the rival pleadings, we find that in all four blocks are relevant to question the impugned order. it would be therefore necessary to examine whether any satisfactory explanation has been offered by the respondents for the said period. the four blocks referred to above, which would require consideration, are between : 2.4.2000 to 26.4.2000 ; 26.4.2000 to 15.5.2000; 20.5.2000 to 5.6.2000 and lastly 13.6.2000 to 31.7.2000. we are aware that delay in passing the detention order need not be explained on day to day basis, but it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action. keeping this principle in mind, we have considered the aforesaid four blocks and the response of the respondents therefor, to answer the question raised before us.8. we would first deal with the period between 2.4.2000 till 26.4.2000. no doubt pendency of some legal issue before the apex court per se cannot be a ground for not taking any action on the proposal for detentionespecially having regard to the purpose for detention which is stated to be to forthwith prevent a person from indulging in any act(s) so as to prejudicially affect the maintenance of public order in immediate near future. detention for any other reason would be punitive and not preventive. understood thus, it is expected of the detaining authority to act with utmost dispatch. it is true that the principle applicable while considering the delay in passing the order of detention would be different than the situation when delay in execution of the order is complained of. both these situations are incomparable. however, merely awaiting the decision of any court on some legal issue may in a given case be detrimental in the context of the exigency of the situation for which an action to detain a person is being proposed. be that as it may, in the facts of the present case, we may still prefer to ignore the period between 2.4.2000 till 26.4.2000. for we would give benefit to the perception of the detaining authority to have refrained from passing an illegal order and instead await the decision of the court on the legal issue. as such we are not inclined to accept the petitioner's contention about the delay in passing of the detention order till 26.4.2000.9. we may now proceed to decide to examine the delay with regard to the second block between 26.4.2000 till 15.5.2000. we are constrained to observe that although the detaining authority has admitted on affidavit that it became aware about the observations of the apex court on the legal issue on 26.4.2000 and decided to review the proposal against the detenu, yet the additional commissioner of police for the first time examined the papers and gave his endorsement thereon only on 15.5.2000. in other words, there is absolutely no explanation offered with regard to the inaction between 26.4.2000 tilt 15.5.2000. similar situation appears with regard to the third block between 20.5.2000 to 5.6.2000. the affidavit states that on 20.5.2000 the senior inspector of police, p.c.b.. c.i.d. forwarded the papers after recording his endorsement to the deputy commissioner of police, but the next date which is relevant for our purpose, mentioned in the affidavit, is 5.6.2000, on which day the deputy commissioner of police (p) for the first time examined the papers and recorded his endorsement. in other words, there is no explanation whatsoever for the inaction between 20.5.2000 till 5.6.2000. similar is the position in respect of the last block between 13.6.2000 till 31.7.2000. from the affidavit what transpires is that on 13.6,2000 the detaining authority examined the papers and recorded his opinion that this was a fit case for issuing order of detention, but thereafter the papers were forwarded to the sponsoring authority for the purpose of fair typing, for preparing translation of the documents in known language to the detenu and for preparing the necessary sets of the documents etc. only on 31,7.2000. in other words, there is absolutely no explanation for the inaction between 13.6.2000 till 31.7.2000. from the aforesaid facts we are more than convinced that the authorities were absolutely inactive and observed laxity between 26.4.2000 to 15.5.2000 and again between 20.5.2000 to 5.6.2000 and lastly from 13.6.2000 till 31.7.2000. this inaction clearly doubts the genuineness of the subjective satisfaction recorded by the detaining authority. if the detaining authority was realty keen to detain the detenu at the earliest opportunity, there is no reason for the inaction between the aforesaid periods which are unquestionably quite significant. we cannot countenance the attitude of the authorities, to remain inactive for such a long time and yet claim that it is imperative to detain a person who was admittedly on bail since 18.1.2000. the stand taken by the respondents would only reflect of the double standards adopted by the detaining authority. more than that it would indicate that the real purpose of detention was punitive and not preventive. the learned a.p.p. vehemently argued before us that the detaining authority while recording the subjective satisfaction has taken into account the past criminal background of the detenu and therefore it cannot be assumed or remotely suggested that the live link had snapped. it was contended that once subjective satisfaction is recorded, it is not open for the court to sit over the same and observe that the subjective satisfaction so recorded was not genuine. we are afraid, this argument, though appears to be attractive at the first blush, but is riddled with various other difficulties. if we accept this submission, then, necessarily, in no case the detenu would be entitled to assail the order of detention on the ground of delay in passing of the detention order. in our view, the issue of delay in passing of the order to some extent overlaps with the issue of state ness of the ground. it is not necessary for our purpose to elaborate this aspect of the matter as we are inclined to hold that there is absolutely no explanation offered by the detaining authority for the substantial periods which inevitably affects the genuineness of the subjective satisfaction recorded by the detaining authority for passing the detention order. in the present case it is seen that the detaining authority accepted the proposal to detain on 13.6.2000 but the formal order came to be passed only on 5-8.2000 and no explanation is offered for such delay. in our view, if it was so essential to detain the detenu so as to prevent him from indulging in any act of prejudicially affecting the maintenance of public order, surely the authorities were expected to act with utmost dispatch and not with such laxity. the principle enunciated by the apex court in catena of decisions is that : the delay ipso facto in passing of the order may not be fatal but if the detaining authority fails to offer satisfactory explanation it would surely reflect upon the genuineness of the subjective satisfaction recorded by the detaining authority. instead of multiplying the authorities we would prefer to rely on the decision in : 1994crilj620 , which was under the same act viz. m.p.d.a. act. besides the said decision we may also refer to the two decisions of our high court relied by the petitioner where the abovesaid principle has been reiterated by this court, while following the decision of the apex court. the legal position is that if the delay is unexplained, whether short or long especially when a specific plea of delay in issuance of the detention order has been taken, is sufficient to quash the detention order, as observed by the apex court in : 1994crilj620 .10. in the present case we have no hesitation in recording that the detaining authority has failed to furnish any satisfactory explanation with respect to delay in issuance of the detention order. as a necessary corollary, we will have to be assume that the subjective satisfaction recorded by the detaining authority was not genuine and that the live link between the prejudicial activities of the detenu and the rationale of clamping the detention order, which is a draconian action, qua the detenu, cannot stand the test of judicial scrutiny. if we were not to quash such a detention order,the detention under the said order would cease to be preventive but assume the colour of being a punitive action, which cannot be countenanced in law in the circumstances, we would prefer to quash the impugned detention order. hence the following order.petition is allowed and we hereby quash and set aside the order dated 5th august 2000 passed by shri m. n. singh, commissioner of police. brihan mumbai, in exercise of the powers under section 3(1) of the m.p.d. a. act, 1981, detaining the detenu shri shankar @ shankrya ramchandra lokhande with further directions that the respondents to set at liberty the petitioner's husband - the detenu forthwith if not required in any other case.11. rule made absolute accordingly.