ISMAIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The detenu Mohomed Umar alias Umar Pathan s/o. Jalaluddin alias Matiuzamkhan Pathan is detained vide order dated 3rd July, 1981 issued by the Commissioner of Police under the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers and Drug-offenders Ordinance (Maharashtra Ordinance No. III of 1981) (hereinafter referred to as the Ordinance). With the order of detention the grounds of detention were also supplied. The said order of detention is challenged, in this Criminal Application.

(2.) It is contended by the petitioner that prior to the issuance of the present order under the Ordinance, on 22nd February, 1981, the detenu was detained by the same authority i.e., the Commissioner of police Greater Bombay under a detention order issued under S. 3(2) of the National Security Act, 1980 (Act 65 of 1980) hereinafter referred to as an Act practically on identical grounds. Against the said order issued under the Act, the petitioner had filed habeas corpus petition before this Court, bearing Criminal Application No. 588 of 1981 in which rule nisi was issued on 6th April, 1981. However before the said petition could come up for hearing on 7th April, 1981, the Government of Maharashtra revoked the order of detention under S. 12(2) of the Act in pursuance of the opinion expressed by the Advisory Board that there was no sufficient cause for the detention of the detenu. Since the detenu was already released, he withdrew the habeas corpus petition filed by him. In the present petition it is contended on behalf of the detenu that the grounds of detention and the allegations made in the present detention order issued under the Ordinance on 3rd July, 1981, are pari materia the same except the preamble and instances 1 to 3 which relate to the period between January and February, 1980 and ground No. 19. (sic) This position is not disputed by the Respondents. In view of this admitted position, Shri Karmali the learned Counsel appearing for the detenu contended before us that the impugned order of detention issued under the Ordinance directing the detention of the detenu on the same grounds is not only an abuse of statutory authority but is also mala fide. He also contended that by this order the detaining authority has set at naught the verdict given by the Advisory Board that there was no sufficient cause for the detention of the detenu under the Act. Shri Karmali also contended that under S. 14(2) of the Act it was not open to the detaining authority to pass a fresh order of detention on the basis of the same facts or grounds. What has been forbidden by S. 14(2) of the Act has now been sought to be achieved by the detaining authority by issuing an order of re-detention under the Ordinance. According to the learned Counsel even S. 14(2) of the Ordinance bars such a detention and therefore, the order of detention issued by the Commissioner of Police on 3rd July 1981 is wholly illegal. In support of his contention Shri Karmali has placed reliance upon the decisions of the Supreme Court in, AIR 1969 SC 43 : (1969 Cri LJ 274) Hadibandhu Das v. District Magistrate, Cuttack, AIR 1973 SC 897 : (1973 Cri LJ 627), Masood Alam v. Union of India, AIR 1973 SC 2469 : (1973 Cri LJ 1602) Har Jas Dev Singh v. State of Punjab, AIR 1974 SC 432 : (1974 Cri LJ 449) Chotta Hembram v. State of West Bengal, AIR 1974 SC 1155 : (1974 Cri LJ 811) Baidya Nath Mandi v. State of West Bengal and AIR 1970 SC 1664 : (1970 Cri LJ 1404), Kshetra Gogoi v. State of Assam.

(3.) On the other hand it is contended by Shri Kotwal the learned Public Prosecutor, that the bar contemplated by Section 14(2) of the Ordinance is qua the order issued under the Ordinance itself, and it has no application if the earlier order was issued under another legislation, i.e. National Security Act. Section 14(2) of the Ordinance in substance creates a bar for passing a fresh order of detention unless fresh facts have arisen after the date of revocation or expiry of the order. The term 'detention order' is defined under S. 2(c) of the ordinance, which means an order made under S. 3 of the Ordinance. Therefore according to Shri Kotwal S. 14(2) has no application to the facts and circumstances of the present case because earlier order was issued under the National Security Act and not under the Maharashtra Ordinance No. III of 1981. In support of this contention Shri Kotwal has placed reliance upon the decisions of the Supreme Court in AIR 1952 SC 350 : (1953 Cri LJ 146) Ujagar Singh v. State of Punjab and AIR 1973 SC 844 : (1973 Cri LJ 667) Nagen Murmu v. State of West Bengal.