SAYED MOHD ALAM Vs. D S SOMAN

JUDGEMENT

(1.) In this writ petition the detention of Sayed Kutubuddin who is detained under the provisions of the Maharashtra Prevention of Dangerous Activities of Slum, lords, Bootleggers and Drug-Offenders Act. 1981, is challenged on various grounds.

(2.) Since it is not disputed that the procedure prescribed by law was followed it is not necessary to make a detailed reference to the various dates in that behalf. Shri Canteenwalla, learned counsel appearing for the petitioner has contended before us that the order of detention as well as the continued detention of the detenu is vitiated as the material document i.e., letter dated 30th April 1986 written by the detenu to the Police Commissioner, Bombay was not placed before the detaining authority nor was considered. The said document was material and vital piece of evidence which could have weighed with the detaining authority one way or the other and, therefore, on this count alone the order of detention is vitiated being void abinitio. In support of this contention he has placed strong reliance upon the decisions of the Supreme Court in-Ashadevi v. K. Shivraj and anr.1 and Sita Ram Soman v. State of Rajasthan and ors.2 He has also contended that the order of detention is also vitiated because of non-application of mind on the part of the detaining authority. In this context he has drawn our attention to the amended paragraphs (2) and (2-1) of the petition wherein it is pointed out that the various statements of fact made in the grounds of detention are based on no material which clearly indicate that the detaining authority has passed the order mechanically without any application of mind on his part on the basis of the proposal made by the Police Machinery. He has also drawn our attention to the statements made in the affidavit filed by the Commissioner of Police and particularly to paras 13 and 14 thereof. According to Shri Canteenwalla these various mistakes or mis-statements not only indicate total non-application of mind on the part of the detaining authority but has also prejudicially affected the right of the detenu to make an effective representation. It was also contended by him that in any case grounds 1 and 2 of the grounds of detention would not fall within the scope of enactment as none of the activities of the detenu could be said to be prejudicial to the maintenance of public order.

(3.) With the assistance of the learned counsel appearing for both sides, we have gone through the entire material placed before us. Grounds 2 and 21 of the petition read as follows: 2 The grounds of detention formulated by the detaining authority reveal nonexistent assertions and indicate total non-application of mind to the material. For instance, at internal page 3 of the grounds, the detaining authority has alleged as follows: On interrogation, the arrested accused Murtuza Hussain Chote Choudhari stated that the abovementioned contraband belongs to you and as per your instructions, he has stored the said contraband at the said placeT. (Underlining supplied for emphasis). The abovementioned contraband referred to by the detaining authority in the abovequoted part of the grounds comprised 46 packets of alleged contraband drugs seized from a grocery shop-cum dwelling house and 2 packets of alleged contraband drugs seized from one Dedhia. The material reveals that Murtuza has not said a single word about the aforesaid 48 packets much less that they belonged to the detenu or that they had been stored by him at the shop cum dwelling place pursuant to the detenu's instructions. Either some material which revealed the above has been relied upon behind the detenus back or the said assertion is patently nonexistent and factually erroneous. The proper formulation of the grounds in accordance with the material is the barest minimum guarantee of the application of mind. There was not an iota of material to link the detenu with the seizure of the aforesaid 48 packets despite which the detaining authority has alleged the link on the basis of non-existent material. As such, the detaining authority has relied upon the seizure of the aforesaid 48 packets (46 from the shop-cum-dwelling house and 2 from Dedhia) although the same were irrelevant qua the detenu. It is manifest that the material has been misread and something has been put in Murtuzas mouth, which is belied by Murtuzas statement. In fact, Murtuza had referred to 14 gunny bags at a timber mart and not the 48 packets referred to above. 21. Another instance of non-application of mind to the material and a non-existent assertion is revealed by the assertion at the foot of internal page 1 of the grounds of detention. At page 1 of the grounds, after narrating the seizure of 11 packets of alleged narcotics from one Munna and 1 kg. of alleged narcotics from one Jaman, the detaining authority has alleged as follows: On interrogation of arrested accused Shah Jaman Ajit Julia Pathan, he stated that he had purchased the abovementioned contrabands from you. The said Shah Jaman has nowhere stated that the 11 packets of alleged narcotics were purchased from the detenu. As such, the detaining authority has misconceived the facts and misread the material and as such has levelled the aforesaid nonexistent allegation. The said 11 packets seized from Munna were irrelevant qua the detenu and the said Shah Jaman has not in reality stated that they were purchased from the detenu. As such, even the further assertion at internal page 2 of the ground, that it is well established from the above that the contraband seized vide C.B. Drug Control CID CR No. 60/85 was produced by the arrested accused from youTT, is non-existent as the said 11 packets seized from the said Munna were also part of the contraband seized in C.R. No. 60/85. The grounds of detention also indicate non- application of mind as the alleged bogus customer has been described as the punter although the case had nothing whatsoever to do with gambling. It is likely that the above mistakes and nonexistent statements have been bodily lifted from the proposal for detention. If on comparison of the ground and the proposal it is found that the same mistakes occur therein, it is near conclusive proof of non-application of mind by the detaining authority and abdication of the function of perusal of the material and formulation of the grounds by the detaining authority himself. Even if the abovementioned nonexistent statements and errors are the detaining authoritys own work, the same demonstrate total non-application of mind and a casual and cavalier approach. Other instances of statements which are non-existent in the face of the material are that the detenu was for your complicity in C.R. no. 60/85, C.B. Drug Control CID, Bombay put under arrest on 9-10- 1985. No part of the material placed before the detaining authority and supplied to the detenu reveals this assertion. In the premises, the detention order is void ab initio. In the further affidavit dated 20th October 1986 in paras 2 and 3 the detaining authority has tried to explain that the statement made in the grounds of detention were based on the material placed before it. In view of this affidavit we asked Shri Bardey, P.P. as to whether the statement of fact made in the grounds of detention is supported by the material placed before the detaining authority? With the assistance of the learned Public Prosecutor, we have gone through the various statements, copies of which were supplied to the detenu and we find that several averments made in the grounds of detention do not find place in any of these statements. The statements in the grounds of detention and reproduced in the grounds of challenge i.e., 2 and 21, are not based on any material placed before the detaining authority. Shri Bardey could not show otherwise, nor could dispute this position.