9911796707
TMI Blog2012 (1) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... daily avocations in the said localities and areas are terror stricken and their normal life is affected adversely. In other words, the petitioner was carrying on activities prejudicial to the maintenance of public order in the concerned localities in Brihan Mumbai and Thane District. 2. Although diverse grounds have been raised to challenge the detention order during the course of argument, the Counsel for the petitioner confined the challenge on eight grounds to which we shall make reference hereinafter. 3. In substance, it is asserted that there is delay in passing of the detention order by the Detaining Authority which has vitiated the decision as there was no live-link with regard to the prejudicial activities necessitating detention of the petitioner. In ground (p), the delay in passing detention order essentially refers to three different stages. The first is between 23rd August, 2011 to 2nd September, 2011. However, during the course of arguments, the contention regarding delay in passing the detention order during this period is not pressed. The argument of the petitioner was with reference to delay in passing of the detention order between 2nd September, 2011 till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period between 2nd September, 2011 till 27th September, 2011. Indeed, the Additional Commissioner of Police (Crime) was neither the Sponsoring Authority nor the Detaining Authority. However, as per the office procedure, the file had to pass through the Additional Commissioner of Police (Crime) for endorsing his opinion. It is possible that that work could have been delegated to some other Officer considering the fact that the proposal was pertaining to issuance of order of detention under the said Act. However, that does not mean that the delay between 4th September, 2011 to 27th September, 2011 has not been sufficiently explained. The fact that the concerned Officer was busy with Ganpati Festival Bandobast as well as preoccupied with some important investigation related to serial bomb blasts which shook the City on 13th July, 2011 during the same time is not in dispute. That is a sufficient explanation offered by the State Authorities for time spent in taking final decision on the proposal in question. Moreover, it is well established position that mere delay cannot be the basis to doubt the subjective satisfaction recorded by the Detaining Authority. In addition to unexpla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted if the live-link of the prejudicial activity of the petitioner and the rationale of clamping a detention order on him is snapped. 8. Applying the settled legal position referred to above, to the fact situation of the present case, we have no hesitation in taking the view that the ground of challenge under consideration raised by the petitioner is devoid of merits. Notably, the Counsel for the petitioner, in all fairness, has confined his argument to period spent between 2nd September, 2011 to 27th September, 2011 in the first place and again between 27th September, 2011 till 7th October, 2011. In the first place, the relevant period is only around one month and the aggregate time from the date of grant of bail comes to only about two months. It is unfathomable that the live-link of the prejudicial activities of the detenu would be snapped within such a short period. Further, the Detaining Authority has already offered explanation for the said period. As a matter of fact, the time spent between release of petitioner on bail on 5th August, 2011 till issuance of order of detention dated 14th October, 2011 cannot be said to be gross delay or for that matter resulting in snappi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced that the grounds of detention served on the detenu merely restate the position envisaged in Section 11(5) of the said Act. Section 11(5) of the said Act reads thus: 11(5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board. 11. In the grounds of detention served on the detenu, the Detaining Authority has stated as follows: 12. ...... You have also the right to seek an assistance of any friend who is not a legal practitioner during the course of hearing of the Advisory Board as well as you have the right to examine the witnesses if you so desire. 12. We fail to understand as to how this intimation given to the petitioner results in misleading appraisal as is contended by the petitioner. There is nothing in this intimation to suggest that the petitioner is not entitled to request the Advisory Board to allow him to be represented by a legal practitioner. As observed by the Apex Court, it is not the right of the detenu but it is the discretion of the Advisory Board to allow assistance to be given by a legal practitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a vital document and that ought to have been furnished to the petitioner along with the grounds of detention. Failure to furnish the said proposal submitted by the Sponsoring Authority, the continued detention of the petitioner is vitiated. This grievance of the petitioner has been countered by the Detaining Authority in the reply affidavit. In Paragraph No.2, the Detaining Authority has stated that the proposal was only referred to and not relied upon document. The document relied upon by him for forming of his subjective satisfaction were already supplied to the detenu along with the grounds of detention. He has further stated that he considered only the relied upon documents. 16. To get over this stand taken by the Detaining Authority, it was argued that since the entire process for detaining the petitioner commenced with the proposal submitted by the Borivali Police Station, the said document was a vital document and ought to have been furnished to the petitioner and especially when the Detaining Authority was not claiming any confidentiality or privilege in respect of the said document. This argument will have to be stated to be rejected, considering the legal positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleased on bail, cannot be srticto senso stated to be after the petitioner was released on bail. Because, it was done contemporaneously on the same day itself. In other words, the decision of the Apex Court in Pradeep Nilkanth Paturkar (supra) will be of no avail to the petitioner. Accordingly, even this ground of challenge does not commend to us. 19. That takes us to the next ground of challenge which is articulated in ground (k) of the Petition. It is alleged that the Detaining Authority has not considered the affidavit of the complainant which absolves the detenu of all the charges made against him. The affidavit was sworn on 22nd July, 2011 and therefore, it ought to have been considered by the Detaining Authority while forming subjective satisfaction. The Detaining Authority in the reply affidavit has dealt with this challenge. The Detaining Authority has asserted that along with the proposal dated 23rd August, 2011 for detention of the petitioner/detenu, the affidavit dated 22nd July, 2011 was placed before it. The Detaining Authority has then stated that on 26th July, 2011, the statement of the complainant Shri.Vyas was recorded and the same was also placed before him whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the decision reported in 2008 Cri.L.J. 4567 Union of India vs. Ranu Bhandari. In Paragraph 25 of the said decision, the Apex Court has observed that the consistent view expressed in the matter relating to preventive detention, the Detaining Authority must be provided with all the materials available against the individual concerned, both against him and in his favour, to enable it to reach a just conclusion that the detention of such individual is necessary in the interest of the State and the general public. There is no difficulty in following the exposition of the Apex Court referred to above. However, in the fact situation of the present case as noticed earlier, it is not as if the Detaining Authority was not conscious about the absence of name of the detenu in the original complaint. The Detaining Authority, however, preferred to rely on the disclosure made by the complainant in his statement on 26th July, 2011. Once, the Detaining Authority preferred to rely on the said statement, which is self explanatory and the subjective satisfaction is founded on the said statement, it is not open for this Court to take some other view than the satisfaction recorded by the Det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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