Sanjay Kirale Vs State of Maharashtra and Others

@JUDGMENTTAG-ORDER

1. The petitioner has approached this Court to challenge the detention order dated 30-11-2000 passed by the respondent No. 2 as detaining authority detaining his maternal uncle Vasant alias Vashya s/o Ramappa Suvarna in exercise of powers vested under the provisions of Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slum-lords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (Amended in 1996) (hereinafter referred to a M.P.D.A. Act).

2. The grounds of detention and the detention order which are also dated 30-11-2000 are annexed as Annexures P-l and P-2 respectively to this petition. The order of detention has been confirmed by the respondent No. 1 on 23-1-2001.

3. We have heard the learned Counsel for the parties. Although in this writ petition the learned Counsel for the petitioner has pleaded large number of grounds, but since in our view this petition can be allowed on the ground mentioned in para No. 13 of the petition alone, we are not adverting to other grounds of challenge raised in the writ petition nor to the prejudicial activities of the detenu contained in the grounds of detention warranting issuance of the impugned detention order.

4. The ground in paragraph 13 of the writ petition in short is that the respondent No. 2 relied upon the two in-camera statements of witnesses A and B. The witnesses have narrated in their statements regarding the incidents of June 2000 and August 2000. The order of detention is passed on 30-11-2000 i.e. almost after about 3 months from the last prejudicial activity. Therefore, there is inordinate delay in issuance of the impugned order of detention and on account of the same the live link between the prejudicial activity of the detenu and the rational of clamping of detention order on him is snapped vitiating the order of detention in law.

5. The detaining authority, respondent No. 2 in reply to this ground, on affidavit has stated that in camera statements of witnesses A and B pertained to the first week and third week of June 2000 respectively. The in camera statements were subjectively verified by the superior officer of the rank of the A.C.P. which he endorsed after the due verification and therefore, the reliance was placed on it by the Commissioner of Police Mumbai. In the reply we do not find even a whisper on the explanation of delay in passing the order of detention which is of about three months and twenty days. The detaining authority has not explained this delay.

6. This Court in writ petition 57/2001 has considered the ground of objection, as to the delay in passing the order of detention. We have observed that "when there is delay in issuing detention order, the same has to be specifically explained by the detaining authority, in absence of which there is no live link between the prejudicial activities of the detenu and the rational of clamping the detention order on him which itself impairs the subjective satisfaction on the part of the detaining authority and the order of detention suffers from the vice of the non application of mind.

7. We refer to the decision of the Apex Court in case of Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, . The Apex Court has held that the delay ipso facto in passing the 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 .

8. We also refer to the decision of the Supreme Court in Pradeep Nikanth Paturkar Vs. S. Ramamurthi and others, 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.

9. In the case before hand as stated earlier the detaining authority has not explained the delay and therefore we do not find that the detention order would sustain. It suffers from vice of non application of mind on the part of the detaining authority.

10. The learned A.P.P. Mr. Loney placed reliance on the decision of Hasan Khan Ibne Haider Khan Vs. R. H. Mendnoca and Others, in which the Apex Court has held that there was no unduly delay in passing the order of detention as the inquiry into the incident was completed in Feb. and the order was passed in April after going through two stages. In the case before hand the factual position is entirely different in as much as the detaining authority has failed to give explanation for the delay, so that the Court could come to the reasonable conclusion that the delay was justified in the facts and circumstances of the case. We are therefore, of the opinion that the decision relied upon by the learned A.P.P. does not come to the rescue of the detaining authority.

11. In the result the order of detention is quashed. The detenu Vasant alias Vashya S/o Ramappa Suvarna be set at liberty forthwith if not required in any other case. Rule is made absolute.