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Bombay HC Allows Habeas Corpus Petition As Detaining Authority Didn’t Draft Grounds For Detention Himself [Read Judgment]

Nitish Kashyap
22 Sep 2017 5:43 AM GMT
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The Bombay High Court recently allowed a habeas corpus petition challenging an order dated March 20, 2017, passed by the Commissioner of Police, Solapur, sanctioning preventive arrest of one Taufiq Ismail Shaikh under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing of Essential Commodities Act, 1981.

A bench of Justice AS Oka and Justice Riyaz Chagla held that since the detaining authority did not draft the grounds for detention himself and yet recorded a satisfaction justifying the detention, the order of detention was invalid.

Case Background

Accused Taufiq Shaikh was detained in a case on November 25, 2016, on the basis of an FIR registered at Sadar Bazar Police Station, Solapur. He was detained in another case for which he was arrested on November 28. However, he was released on bail in the earlier case on December 30.

Thereafter, he was released in the second case on March 3, 2017.

After recording statements of witnesses in-camera, an order of detention was passed by the Commissioner of Police, Solapur, on March 20.

Dadhichi S Mhaispurkar, counsel for the petitioner, submitted that the detaining authority (Commissioner) had passed the order hurriedly, mechanically and without application of mind. Therefore, the order of detention must be declared null and void, he said.

In the writ petition, it was stated: “It appears that the detaining authority has not formulated the grounds by himself, and has issued the order on the basis of the ground already formulated by the sponsoring authority or has merely copied the proposal as forwarded by the sponsoring authority.”

According to the judgment, on March 1, ACP Zone-I recommended action of preventive detention. The next day, the Zonal Commissioner noted that the accused was a dangerous person and a slumlord under the meaning of the said Act.

Thereafter, the Commissioner endorsed the same view, and on March 7, a detailed order was passed by the detaining authority recording his subjective satisfaction that it is necessary to detain the petitioner under the Act.

The grounds for detention were drafted on March 9 and sent for approval; and on its basis, the order of March 20 was passed.

The court noted that even though the final proposal was not put up before the detaining authority; on March 7, by a written order, the detaining authority recorded his subjective satisfaction about the necessity of preventively detaining the petitioner under the said Act.

Thus, the court held that the order of detention was invalid and observed: “The contention … that the detaining authority had drafted the grounds himself cannot be accepted as it is completely contrary to what can be seen from the file. We fail to understand as to how the subjective satisfaction could have been recorded by the detaining authority even before the proposal prepared by the sponsoring authority was fully ready. In fact, draft grounds were prepared by the Police Officer after so-called subjective satisfaction was recorded by the detaining authority. The subjective satisfaction could have been recorded only on the basis of the grounds of detention after the grounds of detention were dictated.”

Read the Judgment Here

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