High Court of Bombay

Sunil Pandharinath Dhotre Vs. The Commissioner of Police, Nashik and Ors.

MANU/MH/2111/2020

21.12.2020

Criminal

Non-explanation for delay in intimating the fact of disposal to detenu renders further detention invalid

The Petitioner - detenu takes an exception to the order of detention passed by the Respondent No. 1 - the Commissioner of Police, detaining him for the period of one year under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black-Marketing of Essential Commodities Act, 1981.

The Petitioner submits that, though the order of detention was confirmed by the State Government on 20th March, 2020 under sub-section (1) of Section 12, the same was communicated to the detenu in the Central Prison, Nashik only on 25th June, 2020. This delayed communication of confirmation of the detention order by the State Government would vitiate the detention. The Petitioner would submit that, the delay in communicating the order of confirmation of the detention by the State Government is unexplained.

There is no dispute that, there is a delay of 58 days in serving the copy of the confirmation of the detention order dated 20th March, 2020. In the affidavit filed by the detaining authority, there is no explanation as regards the said delay in communicating the order confirming the detention. There is no explanation much less a reasonable explanation as regards the delay in communicating the said order almost after 58 days. The delay in communicating the order of detention which was confirmed by the State Government under Section 12(1) is unexplained.

Non-explanation for the delay in intimating the fact of disposal to the detenu would also result in rendering the further detention invalid as held in Chinnasamy Thevar v. State of Tamil Nadu and Another. Present Court is in respectful agreement with the view taken in the case of P. Chinnasamy Thevar vs. State of Tamil Nadu. There is no warrant or justification for an order confirming the detention on the opinion of the Board which has the effect of extending the period of detention remaining in the files of the executive without the same being communicated to the person most concerned the detenu - whose freedom has been subjected to jeopardy. He is entitled to know that, the Board had considered his representation as well as his personal submissions if he has chose to appear before - it and that it had been found that, there was sufficient cause for his detention and that the State Government had agreed with it. It is necessary that, the order is made known to the detenu at the earliest.

There is absolutely no explanation for the delay of 58 days delay in communicating the order confirming the detention. No doubt, that the authorities can always explain the delay in communicating the order and the same, if found to be reasonable and satisfactory can be accepted depending of the facts of each case. There was a totally unreasonable delay in communicating the order confirming the detention rendering the detention order unconstitutional.

From the record and the affidavit-in-reply filed by the Respondent, it is clear that the Sponsoring Authority while forwarding the proposal to the detaining authority did not place the detailed order of the Sessions Court stating the reasons while granting the bail to the detenu. It is seen that only operative part was forwarded by the Sponsoring Authority to the detaining authority. The order passed by the learned Sessions Judge while releasing the detenu on bail was a wider piece of evidence and ought to have been forwarded to the detaining authority by the Sponsoring Authority.

The Hon'ble Supreme Court in the case of Rushikesh Tanaji Bhoite vs. State of Maharashtra has taken a view that, full text of order granting bail in favour of the detenu was necessary to be placed before the detaining authority so as to facilitate him to take an appropriate decision thereby recording the subjective satisfaction. Therefore, the order of detention impugned in the petition cannot be legally sustained. The Writ Petition is allowed. The Petitioner - detenu shall be released forthwith unless otherwise he is required in any other matter.

Tags : Detention Release Entitlement

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