Case Note & Summary
The petitioner, Ramesh Ramnath Shetty, challenged a detention order passed by the Commissioner of Police, Brihan Mumbai, on 17th September 2004 under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981 (MPDA Act). The detention was based on C.R. No. 192 of 2004 for offences under Sections 302 read with 34 IPC and Section 37(1)(a) read with 135 of Bombay Police Act, along with two in-camera statements recorded on 28.7.2004 and 29.7.2004. The detention order was approved by the Government on 20.9.2004 and served on the petitioner on 21.9.2004 while he was in judicial custody, as he had not availed bail granted on 14.9.2004. The petitioner refused to accept the grounds and documents at that time. On 2.10.2004, the petitioner submitted an application to the Commissioner of Police through the Superintendent of Thane Jail requesting copies of the documents, but no action was taken. His wife also made a similar application on 3.11.2004. The petitioner argued that the failure to consider his application vitiated the detention order due to non-application of mind. The respondents contended that the application was not received by the Commissioner. The court examined the record and found that the application was indeed sent through the jail authorities and ought to have been considered. The court held that the detaining authority's failure to consider the application indicated non-application of mind, rendering the detention order invalid. Consequently, the court allowed the petition, quashed the detention order, and directed the petitioner's release unless required in any other case.
Headnote
A) Preventive Detention - Non-Application of Mind - Section 3(2) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981 - Detention order quashed as the detaining authority failed to consider the petitioner's application dated 2.10.2004 seeking copies of documents, indicating non-application of mind - Held that the failure to consider the representation vitiates the detention order (Paras 5-6).
Issue of Consideration
Whether the detention order under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981 is vitiated due to non-application of mind and failure to consider the petitioner's application for copies of documents.
Final Decision
The court allowed the petition, quashed the detention order dated 17.9.2004, and directed the petitioner's release unless required in any other case.
Law Points
- Preventive detention
- Non-application of mind
- Right to make representation
- Article 22(5) of Constitution
- Section 3(2) of MPDA Act
- 1981
Case Details
2005 LawText (BOM) (08) 168
WRIT PETITION NO. 312 OF 2005
Mr. M.S.Mohite for the petitioner; Mr. D.S.Mhaispurkar, APP for the respondents
Shri. Ramesh Ramnath Shetty @ Shettiyar @ Tambi
Shri. A.N.Roy, Commissioner of Police, Brihan Mumbai; The Superintendent, Thana Central Prison; The State of Maharashtra
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Nature of Litigation
Writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus challenging a preventive detention order under the MPDA Act.
Remedy Sought
The petitioner sought quashing of the detention order dated 17.9.2004 and his release from detention.
Filing Reason
The petitioner challenged the detention order on the ground of non-application of mind by the detaining authority for failing to consider his application dated 2.10.2004 seeking copies of documents.
Previous Decisions
The detention order was passed on 17.9.2004, approved by the Government on 20.9.2004, and served on the petitioner on 21.9.2004. The petitioner had been granted bail on 14.9.2004 but had not availed it.
Issues
Whether the detention order under Section 3(2) of the MPDA Act is vitiated due to non-application of mind by the detaining authority in not considering the petitioner's application dated 2.10.2004 seeking copies of documents.
Submissions/Arguments
Petitioner argued that he submitted an application on 2.10.2004 to the Commissioner of Police through the Superintendent of Thane Jail requesting copies of documents, but no action was taken, indicating non-application of mind.
Respondents contended that the application was not received by the Commissioner of Police and therefore could not be considered.
Ratio Decidendi
The detaining authority's failure to consider the petitioner's application dated 2.10.2004 seeking copies of documents, despite being sent through proper channel, amounts to non-application of mind and vitiates the detention order under the MPDA Act.
Judgment Excerpts
The Petitioner has filed this petition under Article 226 of the Constitution of India seeking writ of habeas corpus inter-alia challenging the detention order passed against him by the Commissioner of Police, Brihan Mumbai on 17th September 2004, while exercising powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981.
It is the case of the Petitioner that on 2.10.2004, he submitted one application addressed to the Commissioner of Police, Mumbai through the Superintendent, Thane Jail. However, no action was taken by the Respondents.
In our view, the failure on the part of the detaining authority to consider the application of the petitioner dated 2.10.2004 indicates non-application of mind and therefore the detention order is vitiated.
Procedural History
The detention order was passed on 17.9.2004, approved on 20.9.2004, and served on 21.9.2004. The petitioner filed an application on 2.10.2004 seeking documents, which was not considered. His wife made a similar application on 3.11.2004. The petitioner then filed the present writ petition on an unspecified date, which was heard and allowed on 17.8.2005.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981: Section 3(2)
- Indian Penal Code, 1860: Section 302, Section 34
- Bombay Police Act, 1951: Section 37(1)(a), Section 135
- Constitution of India: Article 226
