JUDGMENT
Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner who styles himself as the brother of the detenu Mohamad @ Mohamad Kanya s/o Abdul Inamdar, has impugned the order dated 26.8.2000, passed by the 1st Respondent Mr. M. N. Singh, 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 Persons Act. 1981 (No. LV of 1981) (Amendment-1996), (hereinafter referred to as “the M.P.D.A. Act”).
The detention order along with the grounds of detention, which are also dated 26.8.2000, was served on the detenu on 23.9.2000 and their true copies are annexed as Annexures A and B respectively to this petition.
2. A perusal of the grounds of detention would show that the impugned order is founded on the C.R. viz. C. R. No. 91/2000 under Sections 387. 34 of the I.P.C. registered at Kurla Police Station on the basis of a complaint dated 24.8.2000 filed by one Rajesh Kumar and two in camera statements viz. of witnesses viz. A and B, which were recorded on 13.6.2000 and 14.6.2000, respectively.
3. We have heard learned counsel for the parties. Since in our view a reference to the prejudicial activities of the detenu, which have been set out in the grounds of detention, is not necessary for the adjudication of the two grounds viz. grounds 8(B) and 8(J) which have been pressed by Mr. Tripathi, learned Counsel for the Petitioner, we are not adverting to them.
4. Ground 8(B) in short is that although the detention order was passed by the 1st Respondent on 26.8.2000 it was executed on the detenu belatedly on 23.9.2000. It has also been stipulated in the said ground that the said delay throws a cloud of doubt on the genuineness of the subjective satisfaction of the Detaining Authority and the Executing Authority should have disclosed the reason for the delay in the execution. It has also been averred in the said ground that the detenu was available at his
Bombay address, mentioned in the grounds of detention, but the authorities did not make any sincere attempt to execute the detention order on him. It has further been averred in the said ground that the Sponsoring Authority did not move the Court for cancellation of bail of the detenu nor took any steps under sections 82 to 86 of the Cr.P.C. Finally it has been mentioned in the said ground that the Impugned detention order is illegal and bad in law on account of the vice of delay in its execution and hence is liable to be quashed and set aside.
5. Mr. Tripathi, learned Counsel for the Petitioner, strenuously urged that if the subjective satisfaction of the Detaining Authority was really genuine then he should have ensured that action under section 7 of the M.P,D.A, Act and sections 82 to 86 of the Cr. P.C. was taken with promptitude and application for cancellation of detenu’s bait was also moved without any loss of time.
6. Ground No. 8(B) has been replied to in para 11 of the return of the Detaining Authority and in paras2 to 15 of the return of Sub-Inspector P. R. Yadav attached to Kurla Police Station, Mumbai, the Executing Authority (Sponsoring Authority).
7. In para11 the Detaining Authority, in short, has replied as under:
He has candidly denied therein that there has been any delay on the part of the Executing Authority in serving the detention order on the detenu and on the converse has averred that the same was served on him without any undue delay. He has averred that the detenu was not available at his Bombay address and had made himself scarce and inspite of sincere and diligent effort of the Executing Authority he could only be traced on 23.9,2000, on which date the detention order was served on him. As regards the failure to take action under section 7 of the M.P.D.A. Act and sections 82 to 86 of the Cr. P.C. he has stated that since the detenu was not having any property standing in his name such action was not taken. As regards failure to move for cancellation of ball he has mentioned that diligent and sincere efforts were made to trace the detenu and since It was expected that he would be traced within a period of a month the said course was not resorted to. He has also averred that the procedure for cancellation of bail is a lengthy and time consuming one. At the fag end of para11 the Detaining Authority has asserted that it is denied that the impugned detention orders illegal and bad in law and ought to be quashed and set aside.
8. We now come to the reply to ground 8(B) contained in paras2 to 15 of the return of the Sub-Inspector Yadav, the Executing Authority. He has averred in the said paragraphs that the detention order dated 26.8.2000 and other papers were received for service on the detenu late in the same evening along with detention orders and papers pertaining to three other detenus. They were checked till midnight of 26.8.2000. In the early morning of 27.8-2000 he along with some staff from Externment Branch left Kurla Police Station to trace the detenu and serve the detention order and other papers on him. He visited the residence of the detenu at Kanji Seth Chawl, Kurla where he met the Petitioner from whom he learned that the detenu was not at home. He made enquiries from him and in the surrounding area about the whereabouts of the detenu but could collect no useful information. On 28.8.2000 at about 11.40 a.m. the staff of Kurla
Police Station received an information that the detenu may be in the area of M.R.A. Marg Police Station. Manish Market and Mumbra. They went there, but he could not be traced. On 29.8.2000 at about 11.50 a.m. the staff of the Kurla Police Station made efforts to trace the detenu at his residential place and surrounding areas of Kurla but could not trace him. The same day it made efforts to search him at Mumbra but he could not be traced. Thereafter on 4.9.2000. 5.9.2000, 8.9.2000, 10.9.2000. 12.9.2000. 13.9.2000, 15.9.2000, 21.9.2000 and 22.9 2000 the staff of Kurla Police Station made efforts to trace the detenu at his residence, and other places where he was likely to be found but could not trace him nor could get any useful information regarding his whereabouts. On 23.9.2000 the staff of Kurla Police Station received reliable information that the detenu would be near Ganpati Mandir which was near Kurla Railway Station and on the said information he (Sub-Inspector Yadav) proceeded to Ganpati Mandir from where the detenu was arrested. Thereafter on the same day the detention order and other papers were served on him. He has emphatically denied that the detenu was residing at his Bombay address. Finally in para15 he was averred that the delay in the service of the orders so small that the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him cannot be said to have been snapped on account of the delay.
9. We have perused the averments made in ground 8(B) of the Petition and those made in para11 of the return of the Detaining Authority and paras2 to 15 of the return of the Executing authority and heard learned counsel for the parties. We are constrained to observe that we do not find any merit in ground 8(B).
10. It should be borne in mind that delay simplicitor in the execution/ service of a detention order on the detenu does not vitiate a detention order. It is only vitiated where there is no plausible explanation for the delay in its execution. Such a view is founded on common sense and if it is not adopted then the detenu can always make himself scarce, frustrate the prompt service of a detention order on him and then claim that the subjective satisfaction of the Detaining Authority stands vitiated.
It is a trite that the law would not allow a person to take advantage of his own wrong. When the detenu makes himself scarce and the said inference is manifest from the return filed by the Detaining and Executing Authority, as is the case here, the detention order would not stand vitiated on the vice of delay in execution.
11. It is in this background that we have to examine whether there has been any delay in the execution of the detention order and we dare say that when we do so the irresistible conclusion is that there is no delay in its execution. Earlier, we have referred to in detail the averments contained in the return of Sub-Inspector Yadav, the Executing Authority. We have seen that virtually a date-wise explanation has been furnished regarding the efforts taken by him to execute the detention order and other papers on the detenu. We have seen that the same was frustrated because the detenu was not available at his residential address or at other places where he and his staff searched him. And when he (Executing Authority) finally could get hold of him on 23.9.2000 he served the detention order and other papers on him.
12. Coming to Mr. Tripathi’s grievance that no action under section 7 of the M.P.D.A.. Act and sections 82 to 86 of the Code of Criminal Procedure was taken by the Executing Authority we make no bones in observing that the Detaining Authority has furnished a plausible explanation for the same in para11 of his return to which we have referred to in para 7 of this judgment. We find substance in the said explanation and do not want to burden our judgment by reiterating it.
13. Apart from the fact that the delay in the execution of the detention order has been sufficiently and plausibly explained by the Detaining Authority and the Executing Authority in our view, as has also been averred in para 15 of the return of the Detaining Authority, the delay was so nominal (only of 28 days), that the live link between the prejudicial activities of the detenu and the rationale of clamping the detention order on him cannot be said to have been snapped.
14. It should be remembered that delay in the execution of a detention order on the detenu renders the same unsustainable in law because on account of It the live link is snapped. And where the delay is nominal, as is the case here, the same would not be snapped and the detention order would not be rendered illegal.
15. We would be failing in our fairness if we do not refer to the decision of the Supreme Court rendered in the case of Manju Ramesh Nahar v. Union of India and Ors., which has been cited by Mr. Tripathi.
Mr. Tripathi placed reliance on paras7 and 8 of the said decision. He contended that in the said paras the Supreme Court has laid down that since the object of a detention order is to prevent a person from carrying on his prejudicial activities the order should be implemented forthwith and the said object can be achieved If the order is immediately executed.
16. There can be no dispute about the correctness of the ratio laid down by the Supreme Court in the said paras. But the said ratio would not come to the rescue of the detenu in the Instant case. Because, as we have seen above, the detenu by his own conduct of making himself scare, made the immediate execution of the detention order impossible. Apart from it in the said decision unlike the present case where the delay in the execution of the detention order was only 28 days, there was a delay of two months and 21 days in the execution of the detention order and the only explanation furnished was a vague allegation in terms that the detenu was absconding but as we have seen earlier that in the instant case a very cogent explanation has been furnished for the delay in the execution of the detention order. Hence in our view the said decision, wherein the detention order was quashed on the vice of delay in its execution would have no application.
17. For the said reasons, in our view, there is no merit in ground 8(B).
18. We now come to ground 8(J). Ground 8(J) in short is that in para 4(a)(vii) of the grounds of detention the Detaining Authority has shown his awareness that in C.R. No. 91/2000, (referred to in para 4(a)(vi) of the grounds of detention) the detenu was ordered to be released on bail in the sum of Rs.25,000/- with some stringent conditions and he availed of the bail on 25.2.2000 and the said bail order was modified on 12.6.2000 by
the Additional Chief Metropolitan Magistrate, 11th Court, Kurla, on an application made by the detenu to which a reply was filed by the police, and inspite of the fact that the detention order was passed on 26.8.2000, a copy of the order by which the earlier bail order was modified, a copy of the application on which it was passed and a copy of the reply of the police, which were a vital document, were neither placed by the Sponsoring Authority before the Detaining Authority nor supplied to the detenu. Mr. Tripathi, urged that the fall out of such a failure is two fold (a) the subjective satisfaction of the Detaining Authority to detain the detenu under section 3(1) of the M.P.D.A. Act is vitiated; and (b) the detenu’s fundamental right of making a representation, guaranteed by Article 22(5) of the Constitution of India, has been infracted.
19. Ground 8(J) has been replied to in para2 of the second return (dated 15.3.2000) filed by the Detaining Authority which was necessitated because ground 8(J) was added pursuant to the liberty granted by this Court vide its order dated 15.3.2001 and the first return of the Detaining Authority was sworn on 5th January. 2001. The burden of song of the Detaining Authority in the said paragraph is that copies of the necessary and vital documents, including original application for ball and the order granting bail which were vital and material documents, were placed before him and supplied to the detenu and copies of the subsequent application for relaxation of the condition of reporting, the reply of the police to it, and the modified bail order were not vital documents and their placement would not have affected his subjective satisfaction.
In para2 of his return the Detaining Authority has averred that modification in the bail order was in terms that instead of reporting every day at Police Station, as provided in the original bail order the detenu had to report at the Police Station as and when called by the Investigating Officer. He has averred that such a modification would not have influenced his subjective satisfaction to pass the impugned order.
20. We have perused ground 8(J) of the Petition and para2 of the return of the Detaining Authority dated 15.3.2001 wherein the said ground has been replied to and heard learned Counsel for the parties. We find merit in the averment of the Detaining Authority, that the order dated 12.6.2000. whereby the bail order passed in favour of the detenu in C.R. No. 91/2000 was modified, the application of the detenu on which the said order was passed, and the reply of the police on the said application, were not vital documents. In our view, the said documents were not vital documents because the subjective satisfaction of the Detaining Authority to detain the detenu under section 3(1) of the M.P.D.A. Act. was not founded on them. Apart from it in the grounds of detention there is no reference to them and nor can the said documents be classified as material on which the grounds of detention were based. Hence in our view, the failure of the Sponsoring Authority to place before the Detaining Authority copy of the aforesaid documents and its failure to supply them to the detenu would neither vitiate the subjective satisfaction of the Detaining Authority, nor violate the detenu’ s fundamental right to make an effective representation guaranteed by Article 22(5) of the Constitution of India.
Our view is fortified by the observations of the Supreme Court, contained in para6 of the decision in M. Mohammed Sultan v. Joint Secretary to Government of India, Finance Department and Ors.,’ cited by Mrs. Tahilramani. A perusal of the said para6 would show that a contention identical to the one canvassed by Mr. Tripathi was made before the Supreme Court which it rejected in the following words :
“6. … . The application for relaxation of the conditions of bail
submitted by the Petitioner and the order dated October 31, 1989 relaxing the conditions of bail passed by the Additional Chief Metropolitan Magistrate, on the said application were not material documents and were not required to be considered by the Detaining Authority. The non-consideration of the same by the Detaining Authority would not, therefore, impair the satisfaction arrived at by the Detaining Authority and would not vitiate the order of detention. For the same reason the non-supply of the copies of the same to the Petitioner would not result in denial of the right of the Petitioner to make a representation under Article 22(5) of the Constitution.”
21. For the said reasons in our view, ground 8(J) also fails.
22. Before proceeding to the operative part of the judgment we would like to point out that although in this writ petition a large number of other grounds have been pleaded by Mr. Tripathi, the learned counsel for the Petitioner, but since he has not pressed them, we have not dealt with them.
23. In the result we dismiss this writ petition and discharge the rule.