PARVEZ GULAM RASOOL AMIR Vs. SAMAD SHAIKH

JUDGEMENT

(1.) CRIMINAL Writ Petition No. 753 of 1994 is filed, making various grievances against the police machinery. A prayer is made for police protection. In the said petition directions were issued calling for a report from the Police Commissioner. Despite the directions, no report of the Police Commissioner was filed. Instead a report of the Deputy Commissioner of Police, and forwarded by the Joint Commissioner of Police, was filed. In view of the non-compliance, Criminal Application No. 2049 of 1994 is filed for Contempt of Court. It is now common ground that the Commissioner of Police has since filed his report in compliance with the directions. In the circumstances, we do not propose to take action in Criminal Application No. 2049 of 1994. Rule issued in the said Application is accordingly discharged.

(2.) IN the meanwhile, on 26th of May, 1994 a proposal was issued by the Oshiwara Police Station to detain the petitioner in the aforesaid petition under the National Security Act On 10th of August, 1994 the Commissioner of Police issued an order of detention. The said order of detention was served on the detenu on the 23rd of August; 1994. Criminal Writ Petition No. 1015 of 1994 is filed by the wife of the detenu seeking to impugn the aforesaid order of detention. In view of the passing of the order of detention, the contentions contained in Criminal Writ Petition No. 753 of 1994 have not been pressed into service by the counsel appearing on behalf of the detenu. He has directed his energies in impugning the order of detention and no submissions have been advanced in Criminal Writ Petition No. 753 of 1994. In the circumstances Rule issued in Criminal Writ Petition No. 753 of 1994 is also discharged.

(3.) SHRI Kotwal, the learned counsel appearing in support of the Criminal Writ Petition No. 1015 of 1994 has raised several grounds in order to impugn the order of detention. It is not necessary to detail all the grounds as one of the grounds raised by him are sufficient for the disposal of the present petition. Shri Kotwal has pointed out that the detenu in the instant case- was arrested under Section 151 (3) of the Code of Criminal Procedure on the 11th of May , 1994 and was produced before the learned Metropolitan Magistrate, 10th Court, Andheri, Bombay. On the very same day, by an order passed, the learned Metropolitan Magistrate was pleased to discharge the detenu after holding that the detenu is not likely to commit any cognizable offence and the detenu remaining at large will not cause any prejudice to the maintenance of public order. According to Shri Kotwal, it was obligatory on the part of the Sponsoring Authority to place before the Detaining Authority these vital and material facts and it was equally obligatory on the part of Detaining Authority to consider the said vital and material facts before resorting to the drastic provisions of preventive detention without trial. The Detaining Authority has in the grounds of detention relied upon an incident which is alleged to have taken place on a day prior to the passing of the aforesaid by the Metropolitan Magistrate. Failure to place before the Detaining Authority and the consequent failure of the Detaining Authority to consider the said vital and material facts, according to Shri Kotwal, vitiates the subjective satisfaction of the Detaining Authority thereby rendering the detention order unconstitutional, illegal and void.