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Shashidhar Korga Shetty Vs. D.S. Soman, Commissioner of Police, Greater Bombay and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 357 of 1985
Judge
Reported in1986(1)BomCR139
ActsNational Security Act, 1980 - Sections 3(5) and 11
AppellantShashidhar Korga Shetty
RespondentD.S. Soman, Commissioner of Police, Greater Bombay and ors.
Appellant AdvocateS.R. Chitnis and ;D.N. Canteenwalla, Advs.
Respondent AdvocateN.H. Gursahani, Special Counsel, and ;R.S. More, P.P., for respondent Nos. 1 and 2, ;V.D. Govilkar and ;K.C. Sidhwa, Advs. for respondent No. 3
Excerpt:
.....a total failure and neglect on the part of union of india to consider the report submitted by the state government under section 3(5) of the national security act and, therefore, on this ground the continued detention of the detenu is illegal. in support of this contention, strong reliance is placed on the decisions of the supreme court in sabir ahmed v. state of west bengal, 1976crilj622 .so far as staleness and proximity of the grounds of detention is concerned, according to shri gursahani, if both the grounds are read together, they will clearly show the attitude of the detenu. in support of this contention, he placed strong reliance upon the decision of the supreme court in fitrat raza khan v. therefore, non-filing of an affidavit on the part of the union of india and in view of the..........a total failure and neglect on the part of union of india to consider the report submitted by the state government under section 3(5) of the national security act and, therefore, on this ground the continued detention of the detenu is illegal. in support of this contention, strong reliance is placed on the decisions of the supreme court in sabir ahmed v. union of india, : [1980]3scr738 and state of u.p. v. zaved zama khan, : 1984crilj922 . it was then contended that the material documents and facts relating to the application filed by the detenu for anticipatory bail prior to his arrest and the application for bail after his arrest which were disposed of by a speaking order on 6th may, 1985 imposing certain fetters on his movements, were not placed before the detaining authority......
Judgment:

C.S. Dharmadhikari, J.

1-In this writ petition the detenu has challenged the order of detention, dated 6th May, 1985, issued under the provisions of the National Security Act. The said order of detention is based on two incidents, one dated 9-11-1984 in which it is alleged that the detenu gave threats to one Shri Pawaskar for which a case under section 506(iii)-114 I.P.C. has been registered against him and is pending in the Court of law. The detenu was released on bail in the said case. The second incident alleged is dated 4-3-1985 in which it is alleged that the detenu along with three others was involved in a criminal assault with a chopper on one Ashok Nagare who died in the said incident and, therefore, an offence punishable under sections 302/143, 144, 147, 148, 149 I.P.C. is registered against him. The detenu was arrested on 16-4-1985. On the basis of these two incidents, it is alleged that the peace-loving citizens of the locality of Kumbharwada within the jurisdiction of V.P. Road Police Station and Arthur Road within the jurisdiction of Tardeo Police Station in Greater Bombay are experiencing sense of insecurity and are living under the constant shadow of fear, which activities of the detenu are prejudicial to the maintenance of public order in the said localities and areas.

2. This order of detention is challenged mainly on four grounds. The first contention is that there is a total failure and neglect on the part of Union of India to consider the report submitted by the State Government under section 3(5) of the National Security Act and, therefore, on this ground the continued detention of the detenu is illegal. In support of this contention, strong reliance is placed on the decisions of the Supreme Court in Sabir Ahmed v. Union of India, : [1980]3SCR738 and State of U.P. v. Zaved Zama Khan, : 1984CriLJ922 . It was then contended that the material documents and facts relating to the application filed by the detenu for anticipatory bail prior to his arrest and the application for bail after his arrest which were disposed of by a Speaking Order on 6th May, 1985 imposing certain fetters on his movements, were not placed before the Detaining Authority. Therefore, the Detaining Authority has not applied its mind to the material and relevant facts and on that count also the order of detention is vitiated. It was then contended that Ground No. 1 is wholly stale and both the grounds, even if read individually or cumulatively, have no nexus with the maintenance of public order. In support of this contention, reliance is placed on the decision of the Supreme Court in Ajay Dixit v. State of U.P, : 1985CriLJ487 and the decision in Vijay Narain Singh v. State of Bihar, : 1984CriLJ909 .

3. On the contrary it is contended by Shri Gursahani, the learned Counsel appearing for respondents Nos. 1 and 2, that non-communication of the decision by the Central Government cannot vitiate the order of detention. In support of this contention, he has placed reliance upon the decision of the Supreme Court in Mohd. Dana Ali Khan v. State of West Bengal, : 1976CriLJ622 . So far as staleness and proximity of the grounds of detention is concerned, according to Shri Gursahani, if both the grounds are read together, they will clearly show the attitude of the detenu. It is not correct to say that ground No. 1 is stale or too remote to vitiate the order of detention. In support of this contention, he placed strong reliance upon the decision of the Supreme Court in Fitrat Raza Khan v. State of U.P. and others, : 1982CriLJ338 and Gora v. State of West Bengal, : 1975CriLJ429 . In Sabir Ahmed's case, (1980) S.C.C. 295 the Supreme Court has in terms held as under :

'It is true that section 3(2) of COFEPOSA mandates the State Government to send a report to the Central Government. But it does not mean that the representation made by the detenu, if any, should also be sent along with that report. There appears to be no substance in the contention that the Central Government is under no duty to consider a representation made to it by the detenu for revoking his detention, if it simply repeats the same allegations, statements of facts, and arguments which were contained in the representation made to the Detaining Authority. It is common experience that an argument or submission based on certain facts, which does not appeal to a Tribunal or authority of first instance, may find acceptance with a higher tribunal or supervisory authority. Whether or not the detenu has under section 11 a legal right to make a representation to the Central Government is not the real question. The nub of the matter is whether the power conferred by section 11 on the Central Government, carries with it a duty to consider any representation made by the detenu, expeditiously. The power under section 11 may either be exercised on information received by the Central Government from its own sources including that supplied under section 3 by the State Government, or, from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the Detaining Authority or the State Government. If this statutory is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility with constant vigilance and watchful care. The report received under section 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination'.

Therefore, from this decision, it is clear that after the report is received, it must be considered by the Central Government and forwarding of the report under section 3(5) of the Act is not an empty formality. This is not the case where it could be said that the inference that the report is not considered by the Central Government is being drawn only because the order of detention is not revoked by the Central Government as was the case in Mohd. Dhana Ali Khan's case, : 1976CriLJ622 . In the present case, specific averments have been made in that behalf in the grounds of challenge. Rule was issued in the present case on 17-5-1985 and though sufficient time was granted to the Central Government, the Union of India has not chosen to file any Affidavit in reply till today. In these circumstances, we have no other alternative but to hold that the Central Government has not even cared to read the report submitted under section 3(5), much less consider it. As observed in Sabir Ahmed's case, the provision of section 11 is made to confer supervisory power upon the Central Government. Whether or not the Central Government will revoke the detention is a matter of discretion. But this discretion is coupled with a duty and that duty is inherent in the very nature of jurisdiction. Therefore, non-filing of an Affidavit on the part of the Union of India and in view of the specific allegations in the petition, we have no other alternative but to come to the conclusion that the Central Government has failed to carry out its duty in that behalf.

4. So far as the non-placement of the material facts before the Detaining Authority is concerned, we do not find any substance in the said contention. The order of detention was passed on 6-5-1985. The order on the bail application was also passed in the afternoon of the same day, i.e. 6-5-1985. Therefore, it was humanly impossible that the said material could have been placed before the Detaining Authority before passing the order of detention. It is neither shown nor established that the order of detention came to be passed after the order on the bail application was passed.

5. So far as the ground viz. staleness and remoteness of the grounds and that none of the grounds has any nexus with the maintenance of public order is concerned, there is substance in the said contention. If the grounds of detention are tested on the touchstone of the law laid down by the Supreme Court in Ajay Dixit's case, : 1985CriLJ487 , then also the detenu will be entitled to be released. The first incident referred to in the grounds of detention relates to an individual and the threats given to him. It has nothing to do with public order. The involvement of the detenu in the second incident also is not of such magnitude so as to hold that in itself it was enough to call for preventive detention. This is further clear from the order passed by the learned Sessions Judge on the bail application filed by the detenu and, therefore, on this count also it is difficult to sustain the order of detention. This is more so as the Union of India has not filed any affidavit before us and in the affidavit filed in reply, the Detaining Authority has also not satisfactorily explained as to how the incidents in which the detenu was involved have prejudicially affected the maintenance of public order i.e. the even tempo of life in the localities concerned.

6. In the result, therefore, the rule is made absolute and the detenu is directed to be released forthwith, if not required in any other case.


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