Bombay High Court Examines Legality of Preventive Detention Under MPDA Act for Alleged Dangerous Activities. Non-Furnishing of Proforma FIR Not Fatal, but Discrepancy in Translated Grounds Found Factually Well Grounded.

Writ petition challenging preventive detention order dated 12.05.2021 passed under Section 3(2) 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.

Petitioner-detenue sought quashing of the detention order dated 12.05.2021 and release from preventive detention.

The detenue was preventively detained as a dangerous person based on alleged criminal activities and in-camera witness statements. He challenged the detention on grounds of non-application of mind, failure to furnish vital documents, translation discrepancy in grounds, and alleged absence of nexus with public order.

Whether non-furnishing of copy of proforma FIR in C.R. No. 57/2021 vitiated the subjective satisfaction of the detaining authority and violated Article 22(5) right to effective representation. Whether discrepancy between English and Marathi versions of grounds of detention regarding C.R. No. 57/2021 impaired the detenue's right to make an effective representation. Whether the subjective satisfaction that the detenue's activities were prejudicial to maintenance of public order was vitiated, rendering invocation of Section 3 of MPDA Act unjustified.

Petitioner argued that non-furnishing of copy of proforma first page of FIR in C.R. No. 57/2021 constituted failure to supply vital document, vitiating subjective satisfaction and right to representation. Petitioner argued that discrepancy between English and Marathi versions of grounds of detention rendered the right to make effective representation illusory. Petitioner argued that the subjective satisfaction regarding public order was completely vitiated and invocation of Section 3 of MPDA Act was unjustified. Petitioner relied on Ashadevi v. K. Shivraj, AIR 1979 SC 447 and Kamla Kanyalal Khushalani v. State of Maharashtra & Anr., (1981) 1 SCC 748 to emphasize necessity of considering relevant material and furnishing copies. Respondents argued that the detenue was fully conversant with Marathi and no prejudice was caused by inadvertent reproduction of narration in ground 5.2. Respondents argued that ground of non-supply of vital documents was factually incorrect and legally unsustainable because the copy of FIR with all details was furnished to detenue. Respondents contended that the activities of the detenue disturbed public order and therefore the challenge on that count deserved no countenance.

For preventive detention, the detaining authority's subjective satisfaction must be based on consideration of all relevant and vital material; ignoring such material can vitiate the detention order. Failure to furnish documents relied upon to the detenue violates Article 22(5) and the right to make an effective representation. However, the court must examine the substance of the matter: if the omitted document contains all essential details elsewhere or its absence did not affect subjective satisfaction or cause prejudice, the detention order need not be quashed. A translation discrepancy in grounds of detention may be a valid ground of challenge if the detenue was not accurately informed of the grounds; the court must assess whether the discrepancy impaired the right to effective representation.

It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will got vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in Article 22(5) of the Constitution. In this view of the matter, we are afraid to accede to the submission on behalf of the petitioner that failure to furnish copy of the proforma FIR impairs the impugned order. The challenge to the impugned order based on discrepancy in the English and Marathi version of the narration of the facts in respect of C.R. No. 57/21, in paragraph 5.2 of the grounds of detention, appears factually well grounded.

A proposal was initiated to detain the detenue under Section 3 of the MPDA Act based on his alleged dangerous activities. Two fresh offences were registered: C.R. No. 29/2021 at Salgar Vasti Police Station under Sections 341, 384, 385, 506, 427 read with 34 IPC; and C.R. No. 57/2021 on 07.04.2021 at the same police station under Sections 420, 465, 468, 471 read with 34 IPC. The sponsoring authority recorded statements of two witnesses in camera. The Commissioner of Police, Solapur recorded subjective satisfaction and passed detention order dated 12.05.2021 under Section 3(2) of the MPDA Act; grounds of detention served on detenue on 12.05.2021. The detenue filed Writ Petition No. 2336 of 2021 before the Bombay High Court challenging the detention order. Affidavits-in-reply were filed by respondent No.1 and on behalf of respondent No.2. The High Court heard arguments on 03.08.2021 and reserved judgment; judgment pronounced on 03.09.2021.

• 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: Section 3, Section 3(2)
• Constitution of India: Article 22(5)
• Indian Penal Code, 1860: Sections 341, 384, 385, 506, 427 read with 34; Sections 420, 465, 468, 471 read with 34