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NizamuddIn ShamsuddIn Shaikh Vs. J.F. Ribeiro, Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Writ Petition No. 170 of 1984
Judge
Reported in1986(1)BomCR586
ActsNational Security Act, 1980 - Sections 3(2) and 3(5)
AppellantNizamuddIn ShamsuddIn Shaikh
RespondentJ.F. Ribeiro, Commissioner of Police and ors.
Appellant AdvocateS.S. Bhate, Adv.
Respondent AdvocateR.S. More, P.P. for respondent Nos. 1, 2 and 3
Excerpt:
.....confirming detention - central government failed to pass appropriate orders on report made by state government in connection with detention of petitioner - held, detention of petitioner rendered illegal and set aside. - - 2. the 1st respondent-commissioner of police, greater bombay, on the material placed before him was subjectively satisfied that with view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under the provisions of the national security act. 1 has filed the return on june 27, 1984. 5. the allegations contained in paragraph 12 of the petition are concerning the detaining authority, the state government as well as the union of india. ' 8. shri bhate, the learned counsel appearing in..........allegations contained in paragraph 12 of the petition are concerning the detaining authority, the state government as well as the union of india.6. in regard to the union of india it may be stated that the notice of this writ petition and the rule nisi were served on the union of india on may 11, 1984. the notices were received by on shri mukundlal nighnani, the desk officer on behalf of ministry of home affairs, government of india. in fact the said officer vide his letter dated may 11, 1984 informed the additional registrar of this court about the receipt of the notice in the above referred criminal writ petition. inspite of the service of the notice on the union of india on 11-5-1984. no attempt has been made to file any return in this writ petition. we have, therefore, to proceed.....
Judgment:

S.P. Kurdukar, J.

1. The petitioner who is a detenu has filed this writ petition under Article 226 of the Constitution of India, challenging the legality and correctness of the detention order dated September 14, 1983 passed under sub-section (2) of section 3 of the National Security Act, 1980 by the 1st respondent.

2. The 1st respondent-Commissioner of Police, Greater Bombay, on the material placed before him was subjectively satisfied that with view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under the provisions of the National Security Act. The grounds of detention were also formulated simultaneously along with the order of detention and were served upon the detenu on September 14, 1983. Since then the detenu is in jail.

3. The detenu in this petition has taken up several contentions but it is not necessary to refer to all these contentions. The petition could be disposed of on one ground taken up in paragraph 12 of this petition.

4. The writ petition was admitted by his Court on April 25, 1984 and the rule nisi was made returnable on June 18, 1984. The detenu has also joined the Union of India as the respondent No. 3. The Commissioner of Police, Greater Bombay viz. respondent No. 1 has filed the return on June 27, 1984.

5. The allegations contained in paragraph 12 of the petition are concerning the detaining authority, the State Government as well as the Union of India.

6. In regard to the Union of India it may be stated that the notice of this writ petition and the rule nisi were served on the Union of India on May 11, 1984. The notices were received by on Shri Mukundlal Nighnani, the Desk Officer on behalf of Ministry of Home Affairs, Government of India. In fact the said officer vide his letter dated May 11, 1984 informed the Additional Registrar of this Court about the receipt of the notice in the above referred criminal writ petition. Inspite of the service of the notice on the Union of India on 11-5-1984. no attempt has been made to file any return in this writ petition. We have, therefore, to proceed with the matter on the affidavits of the State Government and of the Detaining Authority only.

7. In paragraph 12, the petitioner has alleged as follows :

'The petitioner is not aware that (sic) does not admit that mandatory provisions inter alia, in sections 3(3), 3(4), 4(5), 8, 9, 10, 11 and 12 of the National Security Act have been duly and strictly complied with in the present case. Respondents Nos. 1 to 3 are called upon to produce records and information to satisfy this Honourable Court that the detention is strictly in accordance with the procedure and provisions specified in the said sections. If the said sections have not been duly complied with, the detention is illegal, unconstitutional and void.'

8. Shri Bhate, the learned Counsel appearing in support of this petition strongly relied upon the provisions of section 3(5) of the Act and submitted that this Court should call upon the State Government as well as the Central Government to produce before this Court the record concerning the petitioner. According to Shri Bhate the detenu does not know as to whether the State Government which has approved the order has submitted the report within seven days to the Central Government together with the ground on which the order has been approved by the State Government, so also the detenu does not know as to whether the Central Government has looked into and considered the report of the State Government in connection with the detention order of the petitioner. He further submitted that the detenu does not know as to whether the Central Government has confirmed the order of detention. He urged that there appears to be clear beach and /or violation of the mandatory provisions and the procedure prescribed under sub-section (5) of section 3 of the Act which renders the continued detention illegal and must be quashed and set aside.

9. Shri R.S. More, then learned Public Prosecutor appearing on behalf of the respondent Nos. 1, 2 and 4 drew our attention to the reply filed on behalf of the State Government by Shri R.D. Jadhav. Shri More also produced before us the entire file of the State Government concerning the detention of the petitioner. From the record, we gather the following facts and the dates which are necessary to be mentioned here in order to appreciate the contention of Shri Bhate raised on behalf of the detenu: The order of detention was made on September 14, 1983. It was approved by the State Government on September 20, 1983. The State Government made a report to the Central Government under sub-section (5) of section 3 of the Act on September 21, 1983. The detenu's case thereafter was referred to the Advisory Board on October 3, 1983. The Advisory Board gave its report on November 3, 1983. The State Government thereafter on November 14, 1983 confirmed the petitioner's detention order. Shri More inspite of his best efforts was unable to get any information from the State Government as to what happened to the report made by the State Government to the Central Government on September 21, 1983.

10. This writ petition was called out for final hearing on August 23, 1984 and in the midst of the hearing Shri V.D. Govilkar, stepped into the Court and stated that he be permitted to appear on behalf of the Central Government. He made some grievance about the Legal Department working at Bombay and stated that the said department at Bombay in the absence of the copy of the petition could not contact the concerned authority at Delhi to take instructions in the matter. Shri Govilkar therefore, submitted that the matter may be adjourned for one week. We called upon Shri Govilkar to make a written application stating the grounds on which he wants the adjournment and also indicating as to who is responsible in not filling the appearance in the matter as also not keeping the record ready for the perusal of the Court. The matter was therefore adjourned to August 24, 1984 at 2.45 p.m. Today Shri Govilkar remained present in the Court at 2.45 p.m and again repeated the same request that the matter may be adjourned for a week. When we again called upon him to make a written application mentioning the name of the concerned officer at Bombay who is responsible for the several lapses in this case, Shir Govilkar avoided to file any application and walked out of the Court within 10 minutes. We had no other go but to hear the matter in the absence of any Counsel representing the Union of India.

11. The grievance made by the petitioner in this petition appears to be well founded because admittedly the State Government had sent the report in connection with the detention of the petitioner-detenu to the Central Government on September 21, 1983 and since then nothing has been informed to the detenu as to what happened to his detention order. In the absence of any return from the Central Government and in the absence of any record from the Central Government before us for out perusal we have no other alternative but to draw an adverse inference against the Central Government that the aid authority has failed and neglected to consider the report made by the State Government on September 21, 1983. It is not disputed before us that the Central Government has also got power to revoke and /or modify the order of detention. If this is the position in law, in our opinion, it was obligatory upon the Central Government to file necessary affidavit explaining the averments in the petition and to produce necessary record before us to show that it has considered the report made by the State Government and appropriate order has been passed. We are at pains to note such lapses on the part of Union of India which has rendered the continued detention of the detenu illegal.

12. It may not be out/of places to mention that in number of matters arising under the National Security Act although the Union of India is made a party and served with the notices, no appearance is filed, We hope the concerned authority will take a note of this State of affairs and shall issue the necessary instructions and if necessary take such steps against the concerned authority who is responsible for the entire mess.

13. In our opinion, the submission raised on behalf of the detenu in paragraph 12 of the petition has got much substance and has got to be accepted. The result, therefore, is that the continued detention of the petitioner is rendered illegal due to failure on the part of the Centre Government to pass appropriate order on the report dated September 21, 1983 made by the State Government in connection with the detention of the petitioner. On this ground alone the petitioner detenu is entitled to be released. The continued detention of the petitioner-detenu is accordingly held illegal. The detenu is ordered to be released forthwith if not required in any other matter. Rule is accordingly made absolute. A copy of his judgment be forwarded to the Government of India, Ministry of Home Affairs, New Delhi for information.


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