Safruddin Abdul Majid Khan vs Mr. R.H. Mendonca, Commissioner of Police and Others

Vishnu Sahai, J.—Through this petition preferred under Article 226 of the Constitution of India the Petitioner - detenu has impugned the detention order dated 14th May, 1999 passed by the 1st Respondent Mr. R.H. Mendonca, Commissioner of Police, Brihan Mumbai, detaining him under Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (No. LV of 1981)(Amendment 1996), (hereinafter referred to as "M.P.D.A. Act").

The detention order along with the grounds of detention also dated 14th May, 1999, was served on the petitioner - detenu on 6.8.1999, and their true copies are annexed as Annexures "A" and "B" to this writ petition.

A perusal of the grounds of detention would show that the impugned detention order is founded on one C.R. viz. C.R. No. 516/98 under Sections 384, 385, 454, 427, 34 of the I.P.C., registered on the basis of a complaint filed by one Arun Dinkar Gawand at Kandiv li (W) Police Station, on 23.12.98 and two in-camera statements of witnesses A and B which are dated 26.2.1999.

A perusal of the grounds of detention would also show that the Petitioner - detenu has been detained as a dangerous person u/s 2(b-1) of the M.P.D.A. Act.

We have heard learned Counsel for the parties. Mr. U.N. Tripathi learned Counsel for the Petitioner does not dispute that on the basis of the aforesaid C.R. and the in-corner statements of witnesses A and B, the Petitioner - detenu could have been detained as a dangerous person u/s 2(b-1) of the M.P.D.A. Act.

Although in this Writ Petition Mr. Tripathi has pleaded a large number of grounds but since he is only referring to two grounds viz. those pleaded as grounds 70 and 7 (e) we are not adverting to the other grounds of challenge pleaded in this Petition.

We now propose to deal with the said grounds:

Ground 70 in short is that although the detention order was issued on 14.5.1999 it was executed on 6.8.1999 i.e. nearly 2 months and 20 days later. In the said ground it has been averred that the Petitioner - detenu was available at his Bombay address. It has also been averred therein that even assuming that the Petitioner - detenu was not available to the police the Detaining Authority should have moved to the Competent Court for cancellation of his bail and should have taken recourse to measures u/s 7 of the M.P.D.A. Act. Mr. Tripathi urged that the failure of the Detaining Authority to take recourse to aforesaid measures throws a cloud of doubt on the genuineness of the subjective satisfaction of the Detaining Authority.

Ground 70 has been replied to in para 11 of the return of the detaining authority and paras 3 to 12 of the return of Mr. V.R. Jamade Police Sub-Inspector attached to Kandivli Police Station.

The Detaining Authority has averred in para 11-of his return that the detenu was not available at his Bombay address and could only be traced detenu continuous and sincere efforts. In the said paragraph he has also averred that since the Sponsoring Authority was making continuous and sincere efforts to trace the detenu and it was certain that he would be traced, it was felt that taking steps u/s 7 of the M.P.D.A. Act was not necessary. He has also stated in the said paragraph that the process of cancellation of bail is lengthy and time consuming and consequently no Application for cancellation of bail was made.

Mr. V.R. Jamade in paragraphs 3 to 13 of his return has enlisted datewise, the efforts made to serve the detention order on the detenu. In para 3 he has averred that from 16.5.1999 to 19.5.99 and 24.5.99 to 28.5.1999 efforts were made to search the detenu and on the above mentioned dates enquiries were made from (1) Mohd. Ali Rahim Baksha Khan (2) Arjun Bhimaji Ghuge, (3) Mohammad @ Gopi Ahmed Khan (4) Ajiullah Rahimtullah Shaikh, 5) Gufran Rahman Ansari, 6) Bhaiyaram Mataprasad Mourya, (7) Ganesh Rajesh Yadav, 8) Ashok Jagannath Raul, (9) Mohammad Rafique Salal Mohammad Siddiq, (10) Rajkumar Dhanilal Kanojia, (11) Sanjay Eknath Kalokhe, (12) Sachin Chandrakant Maikar, and 13) Roshan Istewar Siddiqui, who were residing near the detenu. In para 4 he has stated that on 29.5.1999 he made efforts to trace the detenu at his residential place but could not trace him. In para 5 he has stated that on 31.5.1999, 1.6.1999, 2.6.1999, 4.6.1999, 6.6.1999, 7.6.1999, 8.6.1999 and 9.6.1999 he made efforts to trace the detenu at his residential place but could not trace him. In para 6 he has stated that on 10.6.1999 he made efforts to trace the detenu at his residential place but could not trace him. In para 7 he has stated that on 6.6.1999 he made efforts to trace the detenu at Sakhira Rabatun Chawl, K.T. Compound, and Gandhi Nagar areas but the detenu could not be traced. In para 8 he has averred that on 17.6.1999, 20.6.1999, 21.6.1999 and 23.6.1999 efforts were made to trace the detenu at his residential place but he could not trace him. In para 9 he has averred that on 24.6.1999, 25.6.1999 and 27.6.1999 efforts were made to trace the detenu but he could not be traced. In para 10 he has averred that on 12.6.1999 and 15.6.1999 efforts were made to trace the detenu in the area of Malvani Police Station and on 10.7.1999 in the area of Kandivli (West) Police Station. In para 11 he has averred that on 22.7.1999 and 23.7.1999 efforts were made to trace the detenu at his residential place and on 31.7.1999 in Nagpada and Dongri areas, because information had been received that he could be found there but he could not be traced. In para 13 he has averred that continuous and secret watch was made near the residence of the detenu and he came to be arrested on 6.8.1999.

Mrs. Tahilramani learned Counsel for the Respondents strenuously urged that the aforesaid averments clearly and categorically show that sincere attempts were made by the Detaining Authority and the Sponsoring Authority to serve the detention order on the detenu.

Mrs. Tahilramani placed reliance on the decision of the Supreme Court in Shafiq Ahmad Vs. District Magistrate, Meerut and Others, . She urged that the said case arose out of a preventive detention under the National Security Act and provisions contained in Section 7 of the National Security Act are similar to those contained in Section 7(1) and 7(2)(a) of the M.P.D.A. Act. She invited our attention to para 5 of the said decision wherein the Supreme Court has held that if the person concerned is not available or cannot be served then the mere fact that no action u/s 7 of the Act was taken would be no ground to vitiate the detention order.

We have perused ground 70, the reply to the said ground referred to above and reflected over the rival contentions. In our view therefore is no merit in ground 70 and the delay in the execution of the detention order, which in our view was relatively small, has been satisfactorily explained in the returns of the Detaining Authority and Sub-Inspector Mr. V.R. Jamade.

We are constrained to observe that we do not find any merit in Mr. Tripathi''s contention that since no steps were taken to apply for cancellation of detenu''s bail in C.R. No. 561/98 and no action was initiated u/s 7(1) and 7(2)(a) of the M.P.D.A. Act it has to be ipso facto concluded that the authorities were not sincere in their efforts to execute the detention order.

Application for cancellation of bail and action u/s 7(1) and 7(2)(a) of the M.P.D.A. Act are just two modes to execute the detention order. Merely because recourse was not taken to those modes, it does not mean that the Detaining Authority and Sponsoring Authority were not sincere in their effort to execute the detention order. There are other modes of executing a detention order and the time - honoured mode and the most prevalent one is to search the place where the detenu is likely to be found. A perusal of the details contained in the affidavit of Sub-Inspector Mr. V.R. Jamade would show that on a large number of dates, both at the residential address of the detenu and at other places where he was likely to be found, efforts were made to trace the detenu. The said dates and the said places have been mentioned in Sub-Inspector Mr. V.R. Jamade''s return.

It is pertinent to mention that the Detaining Authority has also given reasons, to which we have referred to earlier, as to why no Application for cancellation of detenu''s bail was moved and no action u/s 7(1) and 7(2)(a) of the M.P.D.A. Act was initiated. The core reason furnished by the Detaining Authority is that since they were optimistic that the detenu was likely to be found they did not take recourse to such measures.

It should be borne in mind that the delay in the execution of the detention order in the instant case is only two months and 20 days and if the Detaining Authority and the Sponsoring Authority thought in its wisdom that the detenu might be traced at his residential places, we can have no serious quarrel with their wisdom.

We however, hasten to add that we are not trying to minimise the importance of resorting to measures like moving an Application for cancellation of bail or action u/s 7(1) and 7(2)(a) of the M.P.D.A. Act to have a detention order executed. In fact we make no bones in observing that the provisions contained in Section 7(1) and 7(2)(a) of the M.P.D.A. Act have been enacted with the avowed object of ensuring prompt execution of a detention order.

In our view action under the said provisions should be taken and Application for cancellation of bail should be moved if the detenu is not available in a reasonable time.

However, since in the instant case the detention order was executed within two months and 20 days and during this period the said measures were not taken but instead the detenu was repeatedly searched at his residential address and at other places where he was likely to be found absence to take recourse to the said measures would not be fatal.

For the said reasons, in our view, ground 70 fails.

We now turn to ground 7(e).

In short the said ground is that the detenu only knew Hindi language and the Hindi translation of the Remand Application, dated 16.1.1999, moved in C.R. No. 561/98 is not a true and faithful translation of the original Remand Application, which is in Marathi. Mr. Tripathi pointed out that in the Hindi translation the order passed by the learned Magistrate is missing. Mr. Tripathi strenuously urged that since the expression "grounds" used in Article 22(5) of the Constitution of India has been construed by the Supreme Court of India to include material on which the grounds are founded, both the facets of the fundamental right of the detenu guaranteed under Article 22(5) of the Constitution of India have been infracted. He urged that there is non-communication of the grounds of detention to the detenu as also denial of his right of making a representation against the said grounds and detention order.

Ground 7(e) has been replied to in para 13 of the return of the Detaining Authority. In the said paragraph the Detaining Authority has stated that he has not placed any reliance on the remand Application dated 16.1.1999 and in fact he has not even made a passing reference to the said document. He has averred therein that the said document was not a vital document and the impugned detention order was not founded on it but was founded on the statement of the complainant in C.R. No. 561/98 and in camera statements of witnesses A and B.

Mrs. Tahilramani learned Counsel for the Respondents invited our attention to para 14 of the decision of the Supreme Court in Kamarunnissa and Others Vs. Union of India and another, wherein the Supreme Court has laid down that even if a document is referred to but not relied upon by the Detaining Authority and is not a vital document its copy need not be supplied to the detenu.

We have perused ground 7(e), para 13 of the return of the Detaining Authority wherein the said ground has been replied to and reflected over the rival contentions. In our view, since the impugned detention order is founded on C.R. No 561/98 and in camera statements of witnesses A and B the Remand Application as averred by the Detaining Authority in his return cannot be said to be a basis on which the impugned detention order is founded and would not be a vital document. We feel that, in view of the ratio laid down in Kamarunnissa and Others Vs. Union of India and another, , neither of the two facets of the Petitioner - Detenu''s fundamental right under Article 22(5) of the Constitution of India have been infracted.

For the said reasons we do not find any merit in ground 7(e) and reject it.

No other ground was pressed before us by Mr. Tripathi.

In the result, this writ petition is dismissed and rule is discharged.