Abhimanyu Narasu Patil v. Commissioner of Police

1) Petitioner, a detenue has invoked jurisdiction of this Court under Article 226 of the Constitution of India, impugning Order of Detention dated 12th October, 2023, bearing No./TC/PD/ DO/ MPDA/22/ 2023 passed by the Respondent No.1, under Section 3(2) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug- Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (Maha. Act No. LV of 1981) (for short “MPDA Act” ), directing his detention. Along with the Detention Order, the Committal Order and Grounds of Detention of even date are also served upon the Petitioner. The Respondent No.1 has directed that, the Petitioner be detained in Nashik-Road Central Prison, Nashik.

2) Heard Ms. Tripathi, learned Advocate for the Petitioner and Mr. Yagnik, learned APP for the Respondents. Perused entire record produced before us and the Affidavits in response filed by the Respondents.

3) Learned Advocate for the Petitioner submitted that, the impugned Detention Order is passed by the Respondent No.1 mechanically and in a cavalier manner. That, the Detention Order suffers from the vice of non-application of mind as it is apparent from the contents of the Grounds of Detention supplied to the Petitioner along with the List of Documents and the documents annexed thereto. She submitted that, the Detention Order therefore is liable to be quashed and set aside on this solitary ground.

3.1) She submitted that, though the Detaining Authority in paragraph No.12 of the grounds of detention has mentioned about a report submitted by the Assistant Commissioner of Police, Vartaknagar Division indicating verification of the witnesses “A” and “B”, the said report in fact is either not mentioned in the list of documents annexed with the Grounds of Detention or served upon the Petitioner along with the compilation of documents annexed to the Grounds of Detention. Therefore the right of Petitioner to make an effective representation is affected and/or impaired and therefore the Detention Order is vitiated. She therefore prayed that, the Detention Order be quashed and set aside.

4) Mr. Yagnik, learned APP vehemently opposed the Petition. He produced original file of present case for our perusal. He submitted that, ‘the report mentioned in paragraph No.12’ of the Assistant Commissioner of Police, Vartaknagar Division is in fact the verification recorded by the Assistant Commissioner of Police about the truthfulness and or genuineness of the in-camera statements of the said two witnesses. Therefore the report mentioned in paragraph No.12 of grounds of Detention be construed as the verification effected by the Assistant Commissioner of Police of the concerned Division. He submitted that, therefore there are no merits in the Petition and it may be dismissed.

5) It be noted here that, in paragraph No.12 of Grounds of Detention in Marathi vernacular, the Detaining Authority has stated as under:- “ lk{khnkj ^v^ vkf.k ^c^;kauk lgk;d iksyhl vk;qDr orZduxj foHkkx;kauh riklys vkf.k vkEgkl vgoky lknj dsyk-”

5.1) The translated version in English, which is also supplied to the Petitioner, states as under:- “Asstt. Commissioner of Police, Vartaknagar Division has verified the witnesses “A” and “B” and submitted a report to me.”

6) We have perused the original record produced before us and we found that, no such report exists in it. Despite the said fact, the Detaining Authority has referred to and relied upon the said non-existent report while arriving at its subjective satisfaction that, the in-camera statements of witnesses “A” and “B” recorded by the Assistant Commissioner of Police, Vartaknagar Division are genuine and reliable.

7) This Court in the case of Jitendra @ Tiger Umaji Pawar Vs. Commissioner of Police, Thane & Ors. ( Writ Petition No.116 of 2024, dated 20th March, 2024) by following the decision of the Hon’ble Supreme Court in the case of Khudiram Das Vs. The State of West Bengal & Ors., in paragraph Nos. 7 to 9 has held as under:- “7) The Hon’ble Supreme Court in the case of Khudiram Das Vs. The State of West Bengal & Ors. reported in (1975) 2 SCC 81, in paragraph No.6 has held as under:- “6. The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to be communicated to the detenu 'as soon as may be' after the detention. Obviously the reason is two-fold. In the first place, the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only the detenu may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the power of judicial review, howsoever limited and peripheral it may be. Secondly, the detenu has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation? The opportunity of making a representation would be rendered illusory. The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for providing that the grounds of which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. To quote the words of one of us (Sarkaria, J.) in Golam @ Golam Mallick v. The State of W. B. (1975 (2) SCC 4):- “… in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds' within the contemplation of Article 22(5) and Section 8, and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest." This has always been the view consistently taken by this Court in a series of decisions. It is not necessary to burden this judgment with citation of all these decisions. It would be sufficient if we quote the following observations of Patanjali Sastri, C.J., in Ram Krishan Bhardwaj v. State of Delhi, reported in AIR 1953 SC 318-: "...the petitioner has the right under Article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention 'sufficient to enable him to make a representation which on being considered may give relief to him'. We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained." Venkatarama Ayyar, J., also pointed out in Shamrao Vishnu Parulekar v. District Magistrate, Thana reported in AIR 1957 SC 23 that construing the words 'grounds on which the order has been made' in their natural and ordinary sense, "they would include any information or material on which the order was based. The Oxford Concise Dictionary gives the following meanings to the word 'ground': 'Base, foundation, motive, valid reason'. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grounds therefor". (emphasis supplied). It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no shortfall in the materials communicated shall stand in the way of the detenu in making an early, yet comprehensive and effective, representation in regard to all basic facts and material which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These are the legal bulwarks enacted by the Constitution-makers against arbitrary or improper exercise of the vast powers of preventive detention which may be vested in the executive by a law of preventive detention such as the Maintenance of Internal Security Act, 1971.”

8) The view expressed by the Hon’ble Supreme Court in the case of Khudiram Das (Supra) is subsequently followed by it, in the cases of Smt. Icchu Devi Choraria Vs. Union of India & Ors. reported in AIR 1980 SC 1983 and Kamla Kanhaiyalal Khushalani Vs. State of Maharashtra & Anr. reported in AIR 1981 SC 814.

9) It is thus, the settled position of law that, the documents and materials relied upon in the order of detention forms an integral part of the grounds and must be supplied to the detenue pari passu the grounds of detention. If the documents and materials relied upon by the Detaining Authority is either supplied later or not supplied at all then the detenue is deprived of an opportunity of making an effective representation against the order of detention.

9.1) The Hon’ble Supreme Court in a catena of decisions has held that, before an order of detention can be supported, the constitutional safeguards must be strictly observed. That, if the detenue is not to be so informed with the necessary and relevant documents on which the Detaining Authority has placed reliance while recording its subjective satisfaction, the opportunity so solemnly guaranteed by Article 22(5) of the Constitution, becomes reduced to an exercise in futility.

9.2) The Hon’ble Supreme Court in the case of Kamla Kanhaiyalal Khushalani (supra) by referring to and relying upon the case of Smt. Shalini Soni Vs. Union of India reported in AIR 1981 SC 431 has observed that, whatever angle from which the question is looked at, it is clear that ‘grounds’ in Article 22 (5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The ‘grounds’ must be self-sufficient and self-explanatory. The Supreme Court has expressed its view that, the copies of documents to which reference is made in the ‘grounds’ must be supplied to the detenue as part of the ‘grounds’.”

8) It appears to us that, the Detaining Authority has referred to and relied upon a non-existent “Ahawal/Report” while accepting the truthfulness of the in-camera statements of the witnesses “A” and “B” allegedly verified by the Assistant Commissioner of Police, Vartaknagar Division, Thane. It is thus apparent that, the Detaining Authority i.e. the Respondent No.1 though has referred to and relied upon a ‘report’ submitted by the Assistant Commissioner of Police of the concerned Division as stated in paragraph No.12 of Grounds of Detention, did not supply it to the Petitioner and therefore his right under Article 22(5) of Constitution of India to make effective representation is impaired and violated.

8.1) The impugned Detention Order therefore stands vitiated and cannot be sustained in the eyes of law. The further detention of the Petitioner in pursuance of impugned Detention Order cannot be sustained and deserves to be quashed and set-aside.