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Mrs. Anandi Laxman Patil vs Shri R.H. Mendonca, Commissioner … on 26 July, 1999

Bombay High Court
Mrs. Anandi Laxman Patil vs Shri R.H. Mendonca, Commissioner … on 26 July, 1999
Equivalent citations: 2000 (5) BomCR 35, 1999 CriLJ 4481, 1999 (3) MhLj 596
Author: V Sahai
Bench: V Sahai, T C Das

ORDER

Vishnu Sahai, J.

1. Through this writ petition preferred under Article 226 of the Constitution of India the petitioner, who styles herself as the sister of the detenu Shrirang Gajanan Patil, has impugned the detention order dated 17th February, 1999, passed by the 1st respondent Mr. R.H. Mendonca, the Commissioner of Police, Brihan Mumbai, detaining the detenu under sub-section (1) of section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Person Act, 1981 (No. LV of 1981) ( Amendment 1996).

2. The detention order along with the grounds of detention also dated 17th February, 1999 was served on the detenu on 19-2-1999. True copies of the detention order and the grounds of detention are annexed as Annexures “A” and “C” respectively to this writ petition.

3. We have heard Mr. Shirish Gupte for the petitioner and Mr. S.G. Deshmukh, A.P.P. for respondents.

4. The prejudicial activities of the detenu necessitating the issuance of the impugned detention order are contained in the grounds of detention. Since in our judgment a reference to them is not necessary for the disposal of this writ petition we are not adverting to them.

5. Although in this petition Mr. Shirish Gupte learned Counsel for the petitioner has pleaded a large number of grounds, running from Ground 5-A to 5-N but we are only adverting to Ground 5-E, for in our view this writ petition deserves to succeed on the said ground. Ground 5-E in short is that although the detenu was on bail at the time of the passing of the impugned order but his bail application was not placed by the Sponsoring Authority before the Detaining Authority.

It has been urged by Mr. Gupte that the said bail application was a vital document and its non-placement before the Detaining Authority has not only impaired his subjective satisfaction but has also impaired the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India.

To lend force to his submission Mr. Gupte invited our attention to para 12(6) of the decision Abdul Sathar Ibrahim Manik v. Union of India and others, which reads thus:

“6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.”

6. Ground 5-E has been replied to in para 14 of the return of the Detaining Authority, where it has been averred that since the bail application is not a vital document and did not form the basis of the impugned detention order, the detention order would not be vitiated on account of its non-placement before him.

7. We have perused ground 5-E and para 14 of the reply of the Detaining Authority. We are constrained to observe that in view of the decision of the Supreme Court (supra) the reply of the Detaining Authority, referred to above, is unworthy of acceptance.

8. Since the bail application was a vital document and was not placed before the Detaining Authority and its copy was not supplied to the detenu the impugned detention order is vitiated on a dual count:

A. On account of non-placement of a vital document before the Detaining Authority his subjective satisfaction to detain the detenu under subsection (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) has been impaired on the vice of non-application of mind. [In this connection it will be pertinent to refer to para 13 of the decision of the Supreme Court Ayya alias Ayub v. State of U.P. and another. In the said paragraph the Supreme Court has observed thus:”…. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention…)”

B. Since the bail application was a vital document its non-supply to the detenu has deprived the detenu of his right to prefer an effective representation under Article 22(5) of the Constitution of India.

9. For the said reasons we allow this writ petition quash; and set aside the impugned detention order; and direct that the detenu, Shrirang Gajanan Patil, shall be released forth with unless wanted in some other case. Rule is made absolute.

Certified copy of this judgment to be issued to the learned Counsel for petitioner by tomorrow.

10. Petition allowed.

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