Mukesh Prakash Bhalerao v. District Magistrate, Jalgaon

1. This petition is filed to challenge the order dated 23rd January 2023 passed by respondent no. 1-District Magistrate, Jalgaon, in the exercise of powers under sub-section (2) of section 3 of The Maharashtra Prevention of Dangerous Activities of Slumlords, MASHAL Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (‘MPDA’ Act).

2. The detaining authority in the said order of detention has referred to the list of offences registered at various police stations of Bhusawal Taluka of Jalgaon district against the petitioner. The detaining authority has also referred to orders of taking preventive action by Bhusawal police station, district Jalgaon against the petitioner as well as has referred to details of externment proceedings initiated by Bhusawal police station, district Jalgaon against the petitioner. Thus, by referring to cases registered against the petitioner and his associates, the detaining authority has recorded that the petitioner and his associates carry dangerous weapons, thereby creating terror and fear in the minds of the public and committing various offences as mentioned in the sequence described in Chapters XVI and XVII of the Indian Penal Code, 1860. The detaining authority has, in detail referred to allegations against the petitioner in various cases registered against the petitioner, a list of which is mentioned in the detention order. The detaining authority has further reproduced the gist of in-camera statements of two witnesses and has held that considering the criminal activities of the petitioner, he falls within the definition of a dangerous person as defined in the said MPDA Act. Thus, by referring to various cases registered against the petitioner and the gist of the in-camera statement of two witnesses, the detaining authority has passed the order of detention against the petitioner.

3. The petition raises various grounds to challenge the order of detention; however, the learned counsel for the petitioner has pressed into service the ground raised in clause (c) of paragraph 5 of the petition, which reads as under: “(c) The petitioner says and submits that the Detaining Authority has not complied with the requirement of law strictly in as much as no report is sent promptly and expeditiously to the Statement Government “forthwith” as required by Sec. 3(3) of the MPDA Act. The Hon’ble Apex Court while interpreting the very word “forthwith” as immediately, without any loss of time and with sense of urgency. This has been followed by Bombay High Court in a number of judicial pronouncements. The authorities are called upon to explain the said delay, if any to the satisfaction of this Hon’ble Court with regard to the approval of the detention by the State Government under Sec. 3(3) of MPDA Act, as per the requirement of law. It is therefore the order of detention is illegal and bad in law liable to be quashed and set aside.”

4. Learned counsel for the petitioner submitted that though the detention order is passed on 23rd January 2023, same was not sent to the State Government immediately as required under sub-section (3) of section 3 of the said MPDA Act. Learned counsel submitted that the requirement of law mandates that the detaining authority has to promptly and expeditiously send the order of detention to the State Government as required under sub-section (3) of section 3 of the MPDA Act. The learned counsel, by referring to the affidavit filed on behalf of detaining authority, submitted that there is no explanation given with respect to the delay in submitting the order to the State Government.

5. In support of the submissions, the learned counsel relied upon the decision of the Hon’ble Supreme Court in the case of Hetchin Haokip Vs. State of Manipur and others[1]. She has also relied upon the decision of this Court in the case of Dharani Raja Padyachi Vs. The State of Maharashtra and others[2]. Learned counsel for the petitioner thus submitted that the order of detention was issued by detaining authority on 23rd January 2023, and the report of the same was sent to the State Government by hand delivery on 30th January 2023. Learned counsel thus submitted that unexplained delay in submitting the report before the State Government has vitiated the order of detention and, thus, is liable to be quashed and set aside, and the petitioner is required to be released forthwith.

6. Learned APP has relied upon the affidavit dated 16th June 2023 1 (2018) 9 Supreme Court Cases 562 2 2019 ALL MR (Cri) 3504 filed by Mr. Aman Mittal, District Magistrate, Jalgaon, who is the detaining authority. The learned APP submitted that there was no delay in submitting the report of the detention order before the State Government. She thus submitted that there is no merit in the ground raised by the petitioner, and hence, the order of detention be confirmed. Learned APP also relied upon the affidavit dated 15th June 2023 of Mr. Anil Eknath Kulkarni, Joint Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, on behalf of respondent no. 2-State of Maharashtra and submitted that the report of the order of detention was received from the detaining authority on 30th January 2023, and the same was approved by the Government on 3rd February 2023. She submitted that the actual date of detention of the petitioner is 24th January 2023. Learned APP further referred to dates of reference under Section 10 of the said MPDA Act made to the Advisory Board and receipt of the report of the Advisory Board. She thus submitted that the detention order was confirmed after the due procedure on 23rd March 2023.

7. We have considered the submissions made by both parties. It is not in dispute that the report of the detention order passed on 23rd January 2023 was submitted before the State Government only on 30th January 2023. The affidavit filed on behalf of the detaining authority does not explain the delay of 8 days in submitting the report before the State Government. A perusal of the affidavit filed on behalf of the detaining authority shows that there is absolutely no explanation with respect to the said delay.

8. The Hon’ble Supreme Court, in the case of Hetchin Haokip in paragraphs 14 and 15, has held that the expression ‘forthwith’ under section 3(4) of the National Security Act 1980 must be interpreted to mean within a reasonable time and without any undue delay. The Hon’ble Supreme Court has held that any delay between the date of detention and the date of submitting the report to the State Government must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity. In the said case of Hetchin Haokip, there was a delay of 5 days in submitting the report from the date of the order of detention. The Hon’ble Supreme Court, in the said case has set aside the order of detention by holding in paragraphs 14, 15 and 16 as under: