V.K. Tahilramani, J.@mdashThe petitioner who is the brother of detenu Rizwan Yosuf Shaikh alias Joe has impugned the order of detention dated 6th March, 2003 passed by respondent No. 1 i.e. Commissioner of Police, Greater Bombay. By the said order, the detenu has been detained under Sub-section (1) of Section 3 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. The detention order along with grounds of detention which are also dated 6th March, 2003, was served on the detenu on 7th March, 2003 along with the compilation of documents.
3. A perusal of the grounds of detention which are at Annexure-D to the petition shows that the impugned order of detention is founded on two C.Rs. viz. C.R.No. 173 of 2002 and 176 of 2002. Both the said C.Rs. are registered at J.J. Marg Police Station. C.R.No. 173 of 2002 is registered under Sections 324 and 506(11) read with Section 34 of IPC and C.R.No. 176 of 2002 is registered under Sections 387, 324 read with Section 34 of IPC. Besides these two C.Rs. the detention order is also based on two incidents relating to in camera witnesses A & B. The said statements have been recorded on 3rd January, 2003.
4. We have heard the learned counsel for the parties. Although, in this writ petition, a large number of grounds have been raised, Shri. U.N. Tripathi the. learned counsel appearing for the petitioner has pressed only two grounds which are at para No. 7(C) and 7(E) of the petition. Para 7(C) is as under:
"The petitioner says and submits that the detaining authority has referred to and relied on two criminal cases vide C.R.No. 173 of 2002 and C.R.No. 176 of 2002 and two in camera statements recorded on 3.1.2003 to arrive at his satisfaction and pass the detention order. The petitioner says and submits that the last in camera statement is even though recorded on 3.1.03, the impugned order of detention came to be issued belatedly on 6.3.03, thereby the detaining authority has delayed in issuing the order. The order of detention is illegal and bad in law on this count. The said authority is called upon to explain the said delay to the satisfaction of this Honourable Court".
5. Shri. Tripathi, the learned counsel appearing for the petitioner has contended that there is delay in issuing the detention order. He has submitted that a period of almost one month and two days has not been properly explained and as such, the detention order would be vitiated on account of snapping of the live link between prejudicial activities of the detenu and the need to issue the order of detention. Shri. Tripathi has urged that this period of one month and two days which falls between 31st January, 2003 and 3rd March, 2003 has not been explained on behalf of the detaining authority. The said ground has been replied by the detaining authority in para 10 of its affidavit. The said para reads as under:
"With reference to ground (C) of the petition, I offer no comments as far as the facts on record are concerned. However, I deny that there is any delay in issuing the order of detention. It is further denied that the order of detention is illegal, bad in law as alleged. It is submitted that the detenu was arrested in both the C.R''s i.e. C.R.No. 173 of 2002 and CR No. 176 of 2002 on 18.10.2002. After his arrest and during the investigation it was revealed that the detenu and his associates had unleashed a reign of terror in the minds of the people residing in the area of Bara Imam Road, Chimna Bucher Street, Khara Tank Road, Duncan Road, Chor Bazar. Hence, confidential enquiries were made into the activities of the detenu and his associates and it was disclosed that number of people had suffered at the hands of the detenu. The detenu and his associates are weapon wielding desperado and nobody was willing to come forward to lodge the complaint against them due to fear of retaliation. It was only when the assurances were given to the witnesses that their identity were not be disclosed and that they will not be required to give any statement against the detenu in any Court- two persons came forward to give their statements against the detenu and accordingly their statements were recorded in camera on 3.1.2003.
Thereafter the sponsoring authority carefully went through all the material they had collected. They then prepared the necessary sets of documents by getting them typed, xeroxed etc. After the necessary sets of documents were ready, they submitted the same along with the proposal for the detention of the present detenu.
It is stated that the proposal in this case was submitted on 13.1.2003. This proposal was forwarded through the proper channel. It was carefully considered and scrutinized by various authorities at various levels and thereafter the entire material was placed before the then detaining authority. The then detaining authority carefully examined all the material placed before him and after arriving at his subjective satisfaction that it was absolutely necessary to detain the detenu, he passed the order of detention on 6.3.2003. I say that the proposal and papers pertaining to the present detenu was forwarded to the various authorities. Hence, each authority at the different levels had to carefully scrutinize the proposal and papers pertaining to the present detenu.
It is submitted that the present proposal along with the accompanying papers were submitted on 14.1.2003 as per the usual practice, first to the DCP Zone-I, he carefully went through all the papers and gave his endorsement on 21.1.2003 as 19.1.2003 was a holiday. On 15.1.2003 and 16.1.2003 both days, the D.C.P. Zone-I was on V.I.P. bandobast duty as Deputy Prime Minister Shri. L.K. Advani visited Mumbai. Besides, this proposal there were two other proposal which were also processed during the said period.
I say that thereafter the papers came to be forwarded to the Senior Inspector of Police, PCB, CID. He carefully went through all the papers and prepared a detailed typed note and the sets and forwarded the papers to the Deputy Commissioner of Police (Preventive) on 23.01.2003. The Deputy Commissioner of Police (Preventive) went through all the papers. He gave his endorsement thereon on 24.1.2003. Thereafter all the papers were forwarded to the Additional Commissioner of Police (Crime). The Additional; Commissioner of Police (Crime) carefully went through the proposal and gave endorsement of approval and submitted the proposal to the then Detaining Authority on 28.1.2003. It is stated that 25.1.2003 and 26.1.2003 were holidays. Thereafter, the then detaining authority perused minutely all the papers and considered the same and the then detaining authority was of the opinion that it is a fit case for detaining the detenu hence, he gave approval to the said proposal on 31.1.2003.
All the papers were then forwarded to the sponsoring authority 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.
After completing all the necessary work in the matters i.e. typing, translation of 142 pages in Hindi language etc., the necessary sets of documents were received as per the procedure in the Office of Senior P.I. PCB, CID on 3.3.2003.
The Senior Inspector of Police, P.C.B. C.I.D. Mumbai, checked all the documents and put them before the Deputy Commissioner of Police (Preventive) on 3.3.2003. He went through all the papers and put his endorsement thereon on 5.3.2003. Thereafter the papers were submitted to the then detaining authority.
The then detaining authority once again carefully went through the proposal and the papers accompanying the same and finalised the grounds of detention and contemporaneously issued the order of detention on 6.3.2003. In view of the facts and circumstances of this case, it is denied that there is any delay in issuing the order of detention.
Looking to the facts of this case, it cannot be said that the live link between the prejudicial activities and the order of detention is snapped. So also it cannot be said that the incidents are stale and remote in point of tame and/or the detention and grounds of detention are not proximate to the prejudicial activities of the detenu. In any event looking to the propensity and the potentiality of the detenu to indulge in similar prejudicial activities in future, it cannot be said that the live link is snapped or that the incidents have become stale. Thus, there is no substance in the say of the petitioner in this para. I crave leave to refer to and rely upon the affidavits of sponsoring authorities and others as and when necessary."
6. Mr. Tripathi has contended that on perusal of the affidavit in reply, the period between 31st January, 2003 and 3rd March, 2003 has not been explained on behalf of detaining authority and as such, the detention order deserves to be quashed. Mr. Tripathi has contended that the explanation for the said period is that in the said period the translation of the documents in the language known to the detenu, was prepared. He has submitted that the translation was to be made in Hindi language and the said translation was of 142 pages and for this purpose, the period of 1 month and 2 days was not at all necessary. In support of this contention, he has placed reliance on two decisions of this Court. The first decision is in the case of Shankar Raju Salian v. Shri. M.N. Singh and Ors., 2002 M.R. 225, The second decision is in the case of Savita Prakash Manjrekar v. R.H. Mendoca and Ors. reported in 2000 All M.R. 991. Mr. Tripathi has submitted that in the case of Shankar Raju Salian (supra) the detention order came to be quashed as there was a delay of one and half month in preparing the translation of 292 pages in Hindi language. The total delay was of one month twenty six days, however, excluding the eleven days holidays in the said period, the delay was for a period of one and half months. He has submitted that on account of this delay of one and half months, the detention order came to be quashed. He has submitted that in the case of Savita Manjrekar (supra) also the detention order came to be quashed as there was a delay of one month and twelve days taken by the police for preparation of translation.
7. We have carefully perused both the decisions of this Court. In the first case, i.e. in the case of Shankar Raju Salian, we have noticed that there was a delay in three pockets. In the first pocket, there was an unexplained delay of fourteen days. In the second pocket, there was a delay of two months and ten days at the level of the detaining authority and in the third pocket, after excluding the holidays, there was a delay of one and half months in preparing the translation in Hindi language. We have on observed that in the said case, the detention order was not quashed only on account of delay of one and half months in preparing the translations but on account of delay in all the three pockets taken together. In fact, in para 12 of the judgment of the case of Shankar Raju Salian, it has been clearly observed that "in our judgment the delay in the three pockets referred to above, which has not been satisfactorily explained, cumulatively, is sufficient to demonstrate that the detaining authority and sponsoring authority were oblivious to the promptitude with which a preventive detention proposal had to be dealt with." Thus, in the said case, this Court has taken the delay caused in all the three pockets into consideration and then arrived at the conclusion that cumulatively, such delay would vitiate the order of detention.
8. In the case of Savita Manjrekar (supra), there was an unexplained delay in six pockets. In the said case, there was unexplained delay on the part of the respondents in six pockets. In the first two pockets, there was unexplained delay of nine and ten days respectively. In the third and fourth pockets, there was unexplained delay of six days and nineteen days respectively. In the fifth pocket, there was delay between 7.1.1999 and 13.2.1999 i.e. a delay of one month and twelve days on the part of the PCB, CID, Mumbai in preparing the compilation of translation. Thereafter again there was unexplained delay of six days.
We have noticed that in the said case, the detention order was not quashed only on the ground of delay of one month and twelve days in preparing translation but it was quashed on account of cumulative delay in all the six pockets. In fact, the Division Bench in para 7 of the said judgment, has clearly observed that the delay in preparing the compilation coupled with the delay referred to in the other five pockets, is fatal. Thus, it was on account of cumulative delay in all six pockets that the detention order came to be quashed.
9. Whether on account of the propensity and potentiality of the detenu, live link between the prejudicial activities of the detenu & the rationale of clamping detention order on him, is snapped, is a question of fact & not one of law. On the facts & circumstances of the present case, bearing in mind the prejudicial activities of the detenu, it cannot be said that on account of the period between the last prejudicial activity of the detenu & 6th March, 2003 i.e. the date when the detention order was issued, the live link between the prejudicial activities of the detenu and the rationale of clamping an order of detention on him, has been snapped. Looking to the activities of the detenu as reflected in the grounds of detention and the propensity and potentiality of the detenu to indulge in similar activities in future as reflected from his past activities in the grounds of detention, it cannot be said that on account of a gap of about two months from the date of forwarding the proposal till the issuance of the order of detention the live link is snapped. In the present case, satisfactory explanation has been given by the detaining authority in respect of period from 13.1.2003 till 31.1.2003 i.e. the date when the proposal for detention of the detenu came to be approved by the detaining authority. Thereafter the papers were sent for translation and translations were received on 3.3.2003. In the present case, the translation was to be made in Hindi language and it ran into 142 pages. If from the period between 31.1.2903 and 3.3.2003 one excludes the holidays in the said period the remaining period cannot be said to be such as to be called inordinate. The sponsoring authority experiences difficulties in getting good and reliable translators. The translators have to be persons who will maintain confidentiality regarding the nature of the work assigned to them and the contents of the documents to be translated. Thus, the work of translation in such matters cannot be assigned to any and every translator. Besides this, there are a large number of detention orders being issued in which translations have to be prepared. Most of the translations are either in Marathi or in Hindi language, and hence, on account of all these factors some time is bound to be taken in translation of documents. Thus, a period of about 26 days in preparing translation of about 142 pages in Hindi, can be said to be reasonable. Moreover, as observed earlier, looking to the propensity and potentiality of the detenu, the live link between the prejudicial activities of the detenu and the need to issue the order of detention against him, cannot be said to be snapped.
10. Thereafter, Mr. Tripathi has placed reliance on an unreported judgment of this Court dated 20th July, 2001 in Criminal W.P.No. 633 of 2001 in the case of Mrs. Vaishali Prashant Mahadeo-Savant v. State of Maharashtra (Corams T.K.C. Das and Dr. Pratibha Upasani, JJ). However, on perusal of the said decision, we find that the facts therein are entirely different from the facts pertaining to the present case and hence, the said decision would not be applicable to the facts of the present case.
11. The learned A.P.P. has placed reliance on the judgment of the Division Bench of this Court in the case of Arif Dswood Memon '' Arif Toofan v. Satish Sahaney, Commissioner of Police Bombay and Ors. reported in 1996 (2) M.L.J. 545. In the said case, about three weeks time was taken for translation of the documents for preparation of the compilation. The Division Bench of this Court held that there was no delay and even if there is a delay, there is explanation for the same that in the said period of three weeks, time was taken for translation of the documents and for the preparation of the order copies etc. It is further held that the order of detention thus cannot be challenged on the ground that there was a delay in issuing the detention order. In the present case, looking to the serious allegations made in the grounds of detention which show the propensity and potentiality of the detenu to disturb the maintenance of public order$ even assuming that there was some delay, the delay cannot be such which can be said to vitiate the order of detention.
12. The second ground which has been urged by the learned counsel for the petitioner is raised in para 7(E) of the petition. The said ground reads as under:
"The petitioner says and submits that the associate of the detenu one Shri. Fauzan Fazal Shaikh who is also involved in all the cases and against whom some in camera statements are recorded, has been released by the Honourable Advisory Board whereas even though the detenu is also placed in the same situation and circumstances, the detenu''s case is confirmed by the Advisory Board, thereby the said Advisory Board has not followed a just and fair procedure in deciding the case of the detenu. This amounts to violation of the fundamental right of the detenu and there is a breach of Article 14 of the Constitutions of India. This amounts to discrimination since the detenu is not released by the Honourable Board. The advice tendered by the Advisory Board to the State Government is not just and proper. The confirmation order of the State Government based on the report of the Advisory Board is illegal and bad in law. The order of detention is illegal, ought to be quashed."
13. Briefly stated in the said ground it is contended that the co-detenu Shri. Fauzan Fazal Shaikh is also involved in the very same four incidents in which the present detenu is involved. However, in the case of Fauzan the Advisory Board opined that there is no sufficient cause for his detention whereas in the case of the present detenu, the Advisory Board has opined that there was sufficient cause for his detention.
Mr. Tripathi has contended that this amounts to violation of the fundamental right of the detenu and there is a breach of the provisions of Article 14 of the Constitution of India as though the detention orders of the co-detenu Mr. Fauzan and the present detenu are founded on the same four incidents, yet the detention order of the co-detenu came to be revoked. In respect of the co-detenu, the Advisory Board did not find sufficient cause whereas in the case of detenu, the Advisory Board opined that there was sufficient cause to detain him. Mr. Tripathi has submitted that when the case of the detenu and the co-detenu Shri. Fauzan was the same, this amounts to discrimination on the part of Advisory Board in respect of Shri. Fauzan and the present detenu. Thus, he has submitted that the Advisory Board has not followed a just and fair procedure in deciding the case of the detenu.
14. Mr. Tripathi has submitted that the Division Bench of this Court in the case of Mukthar alias Pappu Abdul v. M.N. Singh and Ors. reported in 2002 ALL MR 1334, had quashed the detention order wherein, the detention order of the co-detenus Peter D''Souza and Ashok came to be revoked in the light of the report of the Advisory Board, however, the detention order against the detenu Mukhtar '' Pappu Abdul though founded on the same incidents, was not revoked. In the said case also, both the detenu and the co-detenus were involved in the same incidents and reliance had been placed on the same incidents in the case of detenu as well as the co-detenus to issue the order of detention. We have perused the observations made in para 4 in the said decision and we find that in the said case, the Court was of the opinion that the case of the co-detenus whose detention order came to be revoked and case of the detenu was at par. Moreover, in para 8, the Division Bench has observed that the grounds of detention of the co-detenus were identical to that of the detenu and the detenu and co-detenus were involved in equal measure in the four incidents. Thus, in the case of Mukhtar '' Pappu Abdul on perusal of the grounds of detention in the said case and looking to the incidents in which the co-detenus and detenu were involved, this Court came to the conclusion that the role of detenu and the co-detenus and their involvement in the four incidents relied upon by the detaining authority were on par. Thus, the Court was of the opinion that the order of detenu Mukhtar also ought to have been revoked.
15. On the other hand, the learned A.P.P. has placed reliance on the decision of the Division Bench of this Court in the case of Omprakash Adhyaprasad Singh v. Commissioner of Police and Ors. reported in 2002 ALL MR 1705. In the said case, the detenu and the persons who were co-accused were detained on similar grounds. One of the co-accused was released by the State Government in view of the opinion of the Advisory Board, however, in case of the petitioner-detenus, the Advisory Board opined that there was sufficient material to confirm the detention of the detenus and detenus were not released and the detention order came to be confirmed. The Division Bench held that it does not amount to discrimination as the roles of the detenus and co-accused/co-detenus are dissimilar. In the said case, it was held that roles of the detenu and co-detenus were quite different, hence, the detenu cannot claim parity with the co-detenu whose detention order came to be revoked. The learned prosecutor submitted that in the present case also the role of the detenu and co-detenu Fauzan is dissimilar and hence, no case of discrimination is made out. We find considerable merit in this submission.
16. Useful reference may be made to the decisions of the Supreme Court in the case of
"the role of the petitioner-detenu and that of other detenus can be the criteria for making distinction and discrimination for arriving at different findings".
The Supreme Court has further observed thus:
"the roles of the petitioners and that of the others are not identical and the reasonable apprehension as to the future conduct must depend on the relevant facts and circumstances which differ from the individual to individual."
17. In the present case, we have perused the grounds of detention and the other material pertaining to the present case and we have noticed that the role of the present detenu is not similar to the role of co-detenu Fauzan. In fact, on the perusal of the grounds of detention, in this case, it is clear that the detenu is the leader of the gang and other accused persons were working for him. From the perusal of the grounds of detention, it is clear that other accused persons including Fauzan carried out the orders given by one detenu and acted at his behest.
18. In the present case, the detention order of the detenu and co-detenu Fauzan is based on four incidents i.e. C.R.No. 173 of 2002, C.R.No. 176 of 2002 and statements of in camera witnesses ''A'' and ''B''. On perusal of the material relating to C.R.No. 173 of 2002 as reflected from the grounds of detention, it is seen that during the incident the detenu was the only person who was armed with deadly weapon i.e. chopper and he tried to give a blow with the said chopper on the chest of the complainant Shri. Iqbal Khan. However, Shri. Iqbal Khan averted the blow, whereupon the detenu dealt blow with the said chopper on the right thigh of Shri. Iqbal Khan. During the said incident, Fauzan was not armed with any weapon and the only role attributed to him is that he gave a slap on the cheek of Iqbal Khan. Thus, in the case relating to C.R.No. 173 of 2002 the roles of the detenu and that of Fauzan are entirely different.
19. In the second case i.e. C.R.No. 176 of 2002, it is seen that on 12th October, 2002, the detenu, Fauzan and one other accused entered into the shop of the complainant Shri. Choudhari. At that time, the detenu was armed with big knife and he placed the big knife on the throat of Shri. Choudhari and the detenu demanded protection money. In the said incident also, it is seen that Fauzan was not armed with any weapon and the only role attributed to hiss is that he gave oral threats. Thus, in this case also, it is seen that role of the co-detenu Fauzan was very minor compared to the role of the present detenu. So also in the incident relating to witness ''A'', the detenu was the only person who was armed with deadly weapon i.e. chopper which he had placed on the throat of the witness and threatened him. Fauzan was not armed with any weapon at the said time.
20. On perusal of the last incident i.e. pertaining to witness ''B'', it is seen that the detenu had deputed Fauzan to go to witness ''B'' and ask his for money. When the witness said that he would pay the money after two days, Fauzan told the witness "Bhi Ko Batadeta Hai, Tum Logo Ke Par Nikal Rahe Hai" and Fauzan went away. Thereafter within half an hour, Fauzan returned to the shop of the said witness and he took the said witness to the hideout of the present detenu in Nalawala Building. There, the detenu asked co-accused Sattar to tie the hands and legs of the witness and the detenu threatened the witness. thereafter, the witness was kept in confinement inside the room till the next morning. On perusal of the facts relating to this incident, it is seen that the detenu is the leader of the gang and Fauzan was merely a person who did the bidding of the detenu. Thus, it cannot be said that the role of the detenu and that of Fauzan is the same. The role of Fauzan was comparatively minor in all the said incidents compared to that of the detenu. Thus, it cannot be said that the allegations against the present detenu and that of the co-detenu Fauzan are the same. Their roles in the said incidents are entirely different. The grounds of detention in respect of the detenu and co-detenu are also not identical. In our opinion, on the ground that in the case of the co-detenu Fauzan, the Advisory Board opined that there was no sufficient cause for detention and the order of detention of Fauzan was revoked by the State Government, the present detenu cannot contend that he had been discriminated by the Advisory Board or the State Government while confirming his order of detention. The role of the present detenu is altogether different from that of the co-detenu Fauzan. So far as the detenu is concerned, his role is more serious and he is the one who has used the weapons, whereas, Fauzan has not used any weapons at any time. So also, it is seen that in respect of incident relating to in camera witness ''B'', it is the detenu at whose instance, Fauzan and other accused made demand from the witness for money and had thereafter taken him to the hideout of the present detenu.
21. In the present case, though no affidavit in reply has been filed on behalf of the Advisory Board, the file pertaining to the proceedings before the Advisory Board has been produced before us for our perusal. We have observed that on perusal of the material before it, the Advisory Board opined that there was sufficient material available on the record to detain the present detenu. It is not disputed that the Advisory Board after hearing the present detenu and co-detenu Fauzan had found that in its opinion there was no sufficient material to direct the detention of the co-detenu Fauzan but there was sufficient material in respect of the present detenu. On perusal of the file, we have noticed that the Advisory Board has observed that the role of the detenu and co-detenu is not similar and thus, the Advisory Board has given its opinion that there is sufficient cause for the detention of the detenu u/s 3(1) of M.P.D.A. Act, whereas, in the case of co-detenu Fauzan, the Advisory Board was of the opinion that there was no sufficient cause for his detention under the M.P.D.A. Act. It is only after perusal of the material against the detenu and the co-detenu and after hearing them that the Advisory Board had given its opinion. Thus, looking to the fact that role of the detenu and the co-detenu is not similar* it cannot be said that there is any case of discrimination in so far as the detenu is concerned. So also, it cannot be said that the Advisory Board or the State Government had not followed a just and fair procedure in respect of the present detenu.
22. Lastly, the learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of
23. Petition is dismissed. Rule is discharged.
Parties be given copies of this judgment duly authenticated by Sheristedar of this Court.
