TaxTMI 
TaxTMI 
2025 (10) TMI 1360
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....as already in judicial custody in connection with C.R. No. 140 of 2024, registered with M.I.D.C. Police Station, Jalgaon and continued to remand in such custody for many months thereafter. The order of detention though passed on 18.07.2024, was not served upon the petitioner immediately. The detention order came to be served upon the petitioner only after he was released on bail on 23.05.2025, that was nearly after 11 months later. The petitioner, therefore, raises a grievance that the authorities though fully aware about the petitioner is in jail, have failed to serve the order upon him in the jail and held back the said order till the moment, he came out of the custody, so that they can immediately take him back in the custody on the basis of the said preventive detention. 4. The pleadings in the writ petition and grounds mentioned therein raises several questions upon the illegality of the detention order. The learned advocate appearing for the petitioner argued that the grounds of detention demonstrates that the detaining authority has relied upon two criminal cases, i.e. C.R. No. 140 of 2024 and C.R. No. 127 of 2023, for the purpose of considering the preventive detention a....
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....ioner from custody by holding that the petitioner's detention is absolutely illegal and the detention order passed by the respondent No. 2 is bad in law. 5. The Learned APP vehemently opposed the petition and supported the detention order. She submitted that there is no bar for issuing preventive detention order even against the person who is already in custody and the only requirement that is necessary to be satisfied is that the detaining authority is very much aware of the custody and still is satisfied that after his release he is likely to engage in prejudicial activities. She further argued that these requirements were satisfied, and therefore, the authority was justified in making the order. She has demonstrated by pointing to Section 13 of MPDA Act to justify her arguments that period of detention under MPDA Act has to be reckoned from the date of actual detention and not from the date of order and hence there is absolutely no illegality that can be attached to the fact that the order was served only upon the petitioner's release on bail. As far as reference of crime number 127 of 2023 which is found in the detention order. She took us through the averments which are....
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....of detention, what is decisive is the date of service or execution of the order and not the date on which it was signed. 8. Section 13 of the MPDA act reads as follows: "13. The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12, shall be six months from the date of detention." 9. Thus, the aforesaid provision also makes it clear that the period of detention begins from the date of actual detention of the detainee and not from the date of passing of the order. 10. This position of law, however, does not authorize the detaining authority to sit over the execution of an order at its pleasure. When the person is already in a judicial custody and easily accessible, the authority is expected either the execute the order in jail or to demonstrate by cogent material that there was a real and proximate possibility of release of the detainee on bail and furthermore to justify the making of the order and its postponement of execution. The Honorable Supreme Court in Kamarunnissa v. Union of India, (1991) 1 SCC 128, wherein the Hon'ble Supreme Court has held as under: ....
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....lity of the petitioner's immediate release on bail. It has to be noted that detention order against the petitioner was made in July 2024 and petitioner was granted bail only in May 2025 that is almost 10 months later. Applying these facts to the principle laid down in the Kamrunnisa (supra) condition No.(ii) stands stands not satisfied. 12. In the case of State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613, the Hon'ble Supreme Court has observed as under: "53. Unfortunately, the attention of the High Court was not invited to Haradhan Saha [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] wherein the Constitution Bench did not approve the law laid down by this Court in Biram Chand [(1974) 4 SCC 573 : 1974 SCC (Cri) 609 : AIR 1974 SC 1161] . Referring to the larger Bench decisions, the Court stated: (Haradhan Saha [(1975) 3 SCC 198 : 1974 SCC (Cri) 816], SCC p. 209, paras 33-34) "33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive dete....
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....s in keeping the detention order in cold storage and serving upon the petitioner only on 27.05.2025 after the petitioner was released on bail. No plausible explanation for this long and deliberate delay has been offered. 14. The Hon'ble Supreme Court in T.A. Abdul Rahman v. State of Kerala, (1989) 4 SCC 741, has held as under: "12. In the light of the above proposition of law, we shall now examine the first contention which has been raised for the first time before this Court. From the reading of the counter-affidavit filed on behalf of the first respondent, it is seen that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score. The learned counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 18-1-1988 in pursuance of the impugned order of detention made on 7-10-1987, has frankly admitted that he could not do so - rightly so in our view - in....
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....y between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner." 22. The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been assigned at all." 16. Thus, unexplained delay in execution of the detention order has not been the live link between prejudicial activities and the necessity of the detention and renders the detention illegal. This principle in our view squarely applies to the present case. The live and reasonable nexus between the alleged activities and purpose of detention was irretrievably lost by the unexplained delay of nearly over a year. 17. Upon perusing the records, we find another fundamental infirmity in the impugned detention order. The order in express terms taken into account crime No. 127 of 2023 as o....
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....d, both on the ground that all the basic facts and materials which influenced the subjective satisfaction of the District Magistrate were not communicated to the detenu as also on the ground that the detenu was denied an opportunity of making an effective representation against the order of detention." 19. In the case of Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222, the Hon'ble Supreme Court has held as under: "6. 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 get 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. In Sk. Nizamuddin v. State of West Bengal [(1975) 3 SCC 395 : 1975 SCC (Cri) 21 : AIR 1974 SC 2353] the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the peti....
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....at if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order." 20. According to us, this defect of relying upon an unconnected crime with the petitioners goes to the roots of the subjective satisfaction and cannot be cured by way of any subsequent explanation much less with such irresponsible explanation like typographical error or inadvertent mistake when the authorities are dealing with the personal liberty o....
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....ed-upon papers were supplied to the petitioner only in English language though he had studied in Marathi medium and understands only Marathi. The state has not shown that these documents were accompanied by Marathi translation. The requirement of article 22(5) of the Constitution of India is that the grounds of detention and relied-upon documents must be effectively communicated to the detenue in a language that he understands so as to enable him to make a purposeful and effective representation. This principle has been laid down by the Hon'ble Supreme Court in Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427, wherein it is held as under: "20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu. But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communi....
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.... resulted in the petitioner being kept in illegal detention for over a year, thereby affecting his fundamental rights to life and personal liberty guaranteed under the Constitution of India. The entire course of action demonstrates an arbitrary exercise of executive power. The detaining authority, in our considered view, has been absolutely insensitive and careless while initiated the proceedings against the petitioner. However, because of this unconstitutional arbitrary behaviour of the detaining authority, the petitioner herein has suffered illegal and unconstitutional detention which directly violates Articles 21 and article 22(4) and 22(5) of the Constitution of India. he non-application of mind by the detaining authority, its reliance on extraneous material, and furthermore, the act of casual explanation by stating in the affidavit that offence is mentioned inadvertently and the learned APP orally stating it as typographical error is absolutely and wholly unacceptable. Because of these serious infirmity, the fundamental right of the petitioner of making effective representation is violated. According to us, this is an excellent case where the authorities have abused the preven....