Asif Shaikh v. The Commissioner of Police Mumbai City

1. This petition is filed challenging the order dated 22nd June 2023, passed by respondent no. 1-Commissioner of Police, Mumbai in exercise of the power conferred under sub-section (2) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing Essential Commodities Act, 1981 (‘MPDA Act’) for detaining the petitioner.

2. A perusal of the detention order indicates that the detaining authority has relied upon the incidents referred to in paragraph 8 of the detention order. The detaining authority has relied upon the complaint registered against the petitioner vide CR No. 18 of 2023, dated 12th February 2023, registered for offences punishable under sections 385, 386, 323, 504, 506(ii) of the Indian Penal Code (“IPC”) read with sections 4, 25 of the Arms Act.

3. The allegations against the petitioner in the said CR are that he threatened and assaulted the complainant as he asked for money for taking kebabs from the handcart of the complainant. The complainant has alleged that the petitioner threatens the public at large by brandishing weapons and creating terror amongst people. Hence, the complaint was registered against him. The detaining authority has further recorded that during the course of the investigation, the petitioner was arrested on 19th February 2023 and released on bail on 30th May 2023 as per order dated 26th May 2023.

4. The detaining authority has relied upon two in-camera statements. Witness ‘A’ of the in-camera statement stated that the petitioner, along with his associates, threatened the petitioner for extortion of money. Witness ‘B’ of the in-camera statement also made similar allegations, that the petitioner and his associates assaulted and abused him for extortion of money. Thus, by relying on the aforesaid CR and the two in-camera statements, the detaining authority has recorded subjective satisfaction that the petitioner is a dangerous person and is required to be detained to prevent him from indulging in prejudicial activity in future.

5. The learned counsel for the petitioner has raised various grounds of challenge; however, it is not necessary to examine all the grounds in as much as the petition is required to be allowed on the ground of challenge raised in clause ‘X’ of paragraph 17 of the petition which reads as under: “X) The Petitioner states and submits that the representation of the petitioner was send on behalf of the Advocate on 19th July, 2023 which was duly signed and stamped by the Superintendent of Thane central jail including the petitioner signature, the same was hand deliver to the detenu mother and was send through speed post. Posted by the speed post on: 20/0/2023 Received on 21/07/2023 The Petition was admitted on 14/09/2023 There is delay of 54 days, the Petitioner says and submits that so far, no communication has been received from the State Government as regards to the consideration of the said representation by the State Government, thereby the State Government has delayed in considering the representation of the Petitioner. All respective authorities are called upon to explain the delay, if any, occurred from the date of representation till today to the satisfaction of this Hon’ble Court failing which the continued detention will be held illegal and bad in law, liable to be quashed and set aside.”

6. The learned counsel for the petitioner submitted that the representation dated 16th July 2023 sent through his advocate was duly signed and stamped on 19th July 2023. She submitted that the petitioner also signed the same on 19th July 2023, which was submitted by hand delivery by the petitioner's mother. She submitted that the representation was also forwarded to the State Government by post on 20th July 2023, which was received on 21st July 2023. Learned counsel for the petitioner submitted that the said representation is not decided by the State Government. Learned counsel, therefore, submitted that the petitioner’s right under Article 22(5) of the Constitution of India is violated, and the continued detention of the petitioner is rendered illegal and impermissible. She, therefore, submitted that the detention order be quashed and set aside, and the petitioner be released forthwith.

7. Learned APP supported the detention order by relying upon the affidavit of the detaining authority and the State Government. Learned APP submitted that the State Government never received any representation. He submitted that the petitioner had directly submitted the representation before the Advisory Board, which the Advisory Board rejected on 27th

2023. He submitted that the said rejection is forwarded by the Secretary of the Advisory Board to the State Government by letter dated 31st July 2023. Learned APP further submitted that the said rejection by the Advisory Board is communicated to the petitioner. Learned APP has placed on record a photocopy of the petitioner’s file, including a copy of the opinion of the Advisory Board and the letter forwarding the same to the State Government. Learned APP, therefore, submitted that since the State Government has never received the representation, there is no substance in the ground raised on behalf of the petitioner.

8. We have considered the submissions made on behalf of both the parties. We have perused the record of the petition as well as the affidavits relied upon by the learned APP and the copies of the documents placed on record. A perusal of the detention order indicates that as per paragraph 12 of the detention order, the petitioner was intimated that if he desires to make representation, he has to submit representation to the Additional Chief Secretary, Home Department (Special), Government of Maharashtra, Mantralaya, Mumbai. The said paragraph further indicates that the State Government shall make reference to place the requisite material before the Advisory Board constituted under section 9 of the MPDA Act within three weeks from the date of detention.

9. Learned counsel for the petitioner thus rightly relied upon the representation dated 16th July 2023 addressed to the Additional Chief Secretary, Home Department (Special), Government of Maharashtra, Mantralaya, Mumbai. It appears that the petitioner has correctly addressed the representation to the Home Department and submitted it through the Jail Authority, as intimated in paragraph 12 of the detention order. The documents placed on record by the learned APP show that the petitioner’s representation dated 16th July 2023 was submitted before the Superintendent, Thane Central Prison, through his advocate on 19th July 2023. The letter dated 16th 2023 issued by the Advocate for the petitioner contains a stamp of the Jail Authority acknowledging receipt of the representation. The said acknowledgement is of 19th July 2023.

10. Thus, there is substance in the submission made on behalf of the petitioner that the petitioner's representation made through his advocate on 19th July 2023 was duly signed and stamped by the Jail Authority. The said letter dated 16th 2023 also contains the petitioner's signature. Thus, documents produced by the learned APP clearly support the petitioner's contention that the representation was submitted on 19th 2023 through his advocate before the Jail Authority. A perusal of the representation shows that the same is addressed to the State Government. The documents produced by the learned APP indicate that on 19th July 2023, the Jail Authority forwarded the petitioner's representation to the Additional Chief Secretary (Home), Home Department, (Special – 10) Mantralaya by e-mail. Thus, it is clear that the State Government received the petitioner's representation through e-mail on 19th July 2023. A copy of the letter dated 19th July 2023 issued by the Advocate for the petitioner addressed to the jail authorities reveals that copies of two representations were submitted before the jail authorities, i.e. one was addressed to the Additional Chief Secretary (Home), and another was addressed to the Chairman of the Advisory Board. By the said letter, Advocate for the petitioner requested the jail authorities to forward both the representations through email. Hence, we do not find any substance in the argument advanced by the learned APP that the representation was made only to the Advisory Board and that no representation was submitted before the State Government.

11. Learned counsel for the petitioner has relied upon the particulars stated in ground ‘X’, thereby stating that the representation was sent by post on 20th July 2023, and the same was received on 21st July 2023. It is pertinent to note that the Jail Authority does not dispute that the Jail Authority received the petitioner's representation and that the letter dated 16th 2023 sent by the petitioner’s advocate was signed and stamped by the Jail Authority on 19th July 2023. Thus, in view of the aforesaid undisputed facts, we are satisfied that the representation was correctly made by the petitioner through his advocate and submitted the same through the Jail Authority. The representation was correctly addressed to the State Government, i.e. Additional Chief Secretary, Home Department(Special), Government of Maharashtra, Mantralaya, Mumbai.

12. In view of the aforesaid facts, we have no manner of doubt that the petitioner submitted the representation before the State Government through the Jail Authority and also submitted directly before the State Government through post. There is no merit in the contention of the State Government that the State Government never received the representation; hence, it was not decided. There is also no merit in the contention of the State Government that the Advisory Board rejected the representation. A perusal of the report of the Advisory Board shows that the representation was considered by the Advisory Board and the detenu was also heard. As per the report, the Advisory Board, after perusing the material, forwarded its opinion that there were sufficient grounds for further detention of the detenu.

13. It is a settled principle of law that the detenu has the right to make representation before the State Government. Section 8 of the MPDA Act provides for affording the detenu an opportunity to make a representation against the detention order to the State Government at the earliest. Section 10 of the MPDA Act requires the State Government to place before the Advisory Board constituted under Section 9, the grounds of detention and a representation, if any, made by the detenu. Section 11 states that the Advisory Board shall, after considering the material placed before it and after calling for such further information as it may deem necessary from the State Government or any person concerned, the Advisory Board considers it essential so to do and after hearing the detenu in person, submit its report to the State Government. Section 12 states that when the Advisory Board has reported, in its opinion, that there is sufficient cause for the detention of a person, the State Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period prescribed by Section 13. Sub-section 2 of Section 12 states that in any case where the Advisory Board has reported that, in its opinion, there is no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith.

14. Thus, a conjoint reading of Sections 8,10,11 and 12 of the MPDA Act shows that on the Advisory Board submitting its report to the State Government, depending upon the report, the State Government is empowered to take a decision on the detention order in the event in the opinion of the Advisory Board, there is sufficient cause for detention of the person. However, if the Advisory Board submits a report that, in its opinion, there is no sufficient cause for the detention of a person, the State Government shall revoke the detention order and cause the person to be released forthwith.