Case Note & Summary
The petitioner, Nitin Dattatray Keny, filed a criminal writ petition challenging a detention order dated 31.10.2005 passed by the Commissioner of Police, Brihan Mumbai, under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 (MPDA Act), directing his detention for one year. The order had not yet been served on the petitioner. The petitioner alleged that the order was procured by Inspector Kalekar, in charge of the Externment Division, who demanded a bribe of Rs.2 lakhs and threatened to have him detained under the Act for his involvement in a quarrel at Famous Petrol Pump on S.V. Road, Borivli. The petitioner contended that the detention order was a colourable exercise of power for a wrong purpose, i.e., to extort a bribe, and not for maintaining public order. The State opposed the petition, arguing that the detention was justified. The court, after hearing both sides, examined the grounds of detention and found that the alleged incident at the petrol pump was a simple quarrel and did not affect public order. The court held that the detention order was passed for an extraneous purpose, amounting to a colourable exercise of power, and therefore quashed the order. The court also noted that the petitioner had not been served with the order and that the interim protection granted earlier was made absolute.
Headnote
A) Preventive Detention - Colourable Exercise of Power - Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 - Detention order challenged pre-execution on ground of mala fides - Petitioner alleged that police officer demanded bribe of Rs.2 lakhs and threatened to procure detention order - Court found that the detention order was passed for extraneous purposes, not for maintenance of public order - Held that the order was a colourable exercise of power and liable to be quashed (Paras 4-6).
Issue of Consideration
Whether the detention order under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981 was passed for a wrong purpose, i.e., to extort a bribe, and whether such an order can be challenged before execution.
Final Decision
The court quashed the detention order dated 31.10.2005 passed by the Commissioner of Police, Brihan Mumbai, under the MPDA Act. The rule was made absolute.
Law Points
- Preventive detention
- Colourable exercise of power
- Abuse of process
- MPDA Act
- Pre-execution challenge
- Detention order quashed
Case Details
2006 LawText (BOM) (06) 40
Criminal Writ Petition No.818 of 2006
D.G. Deshpande, S.A. Bobde
Mr. R.M. Agarwal with Mr. B.R. Patil and Mr. Naveen Chomal for the petitioner; Mrs. A.S. Pai, Addl. Public Prosecutor for the State
The State of Maharashtra and A.N. Roy
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Nature of Litigation
Criminal writ petition challenging a pre-execution detention order under the MPDA Act.
Remedy Sought
Quashing of the detention order dated 31.10.2005 passed by the Commissioner of Police, Brihan Mumbai.
Filing Reason
Petitioner alleged that the detention order was procured by a police officer who demanded a bribe of Rs.2 lakhs and threatened detention for a quarrel at a petrol pump.
Previous Decisions
Vacation Judge of the High Court on 19.5.2006 directed that the petitioner be not detained till 12.6.2006.
Issues
Whether the detention order under the MPDA Act was passed for a wrong purpose, i.e., to extort a bribe, and thus a colourable exercise of power.
Whether a pre-execution challenge to a detention order is maintainable.
Submissions/Arguments
Petitioner: The detention order was procured by Inspector Kalekar who demanded a bribe of Rs.2 lakhs and threatened detention for a quarrel at a petrol pump; the order is a colourable exercise of power.
Respondent: The detention order was validly passed under the Act for maintenance of public order.
Ratio Decidendi
A detention order under preventive detention laws must be passed for the purpose of maintaining public order and not for extraneous purposes such as extorting a bribe. If the order is a colourable exercise of power, it is liable to be quashed even before execution.
Judgment Excerpts
The main contention raised by Mr.Agarwal, learned counsel for the petitioner, is that respondent No.2, Commissioner of Police, Brihan Mumbai, has exercised the power of detention for a wrong purpose.
The wrong purpose alleged by the petitioner is the demand by the Inspector of Police, one Kalekar, incharge of the Externment Division, for a bribe of Rs.2 lakhs.
We are satisfied that the order of detention has been passed for a wrong purpose and is a colourable exercise of power.
Procedural History
The petitioner filed Criminal Writ Petition No.818 of 2006 before the Bombay High Court challenging a detention order dated 31.10.2005. On 19.5.2006, the Vacation Judge directed that the petitioner be not detained till 12.6.2006. The State moved for vacation of that order, but the court heard the main petition with consent and quashed the detention order on 19.6.2006.
Acts & Sections
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981:
