wp.1794.2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
WRIT PETITION NO.1794 OF 2012
Smt.Shanta Prakash Shewale, 30 yrs., )
wife of Shri Prakash Pandurang Shewale )
r/at 101, Namaskar Co-op. Housing )
Society Ltd., Sector 3, Airoli, Navi )
Mumbai - 400 708, Dist.: Thane ) ... Petitioner Vs.
1. The Principal Secretary )
(Appeals and Security), Government of )
Maharashtra, Home Department (Special) )
& Detaining Authority, Mantralaya, )
Mumbai - 400 032 )
2. The State of Maharashtra )
3. Director of Revenue Intelligence )
Mumbai, New Marine Lines, )
Mumbai-400020 ) .... Respondents Mr.Prashant Gawali a/w Ms.Mahalaxmi Ganapati for the Petitioner Ms.M.H. Mhatre, A.P.P., for the Respondent Nos.1 & 2 Ms.A.S. Pai, A.P.P., for Resp. No.3 - D.R.I.
CORAM: A.M. KHANWILKAR &
A.R. JOSHI, JJ.
JUDGEMENT RESERVED ON : 17TH AUGUST, 2012
JUDGEMENT PRONOUNCED ON : 24TH AUGUST, 2012
JUDGMENT (PER A.M. KHANWILKAR, J.):
This Writ Petition is filed by the wife of Prakash Pandurang Shewale, to challenge the detention order passed against jvs/vss 1 of 14 wp.1794.2012.doc
him, under Section 3(1) of COFEPOSA Act, 1974, at the pre-detention stage. The Petition is filed on the assertion that the Petitioner, being wife of the proposed detenu Prakash Shewale, is interested in the life and personal liberty of her husband. She has asserted that she has reason to believe that her husband is likely to be detained. This inference is deduced on the basis of grounds of detention served on the co-detenu Ajit Bapu Satam, who has been detained under the provisions of COFEPOSA Act in connection with the activities in which the Petitioner's husband is also allegedly involved. The Petitioner has thus relied on the grounds of detention served on co-detenu Ajit Bapu Satam and the documents accompanying thereto.
2. The Petitioner asserts that her husband has been granted bail by the Additional Chief Metropolitan Magistrate, Mumbai on 26 th September, 2011 with strict conditions. That bail order was unsuccessfully challenged by the DRI before the High Court. The Petitioner's husband, apprehending that he would be detained, made detailed representation to the State Government on 13th January, 2012. Copy of the said representation has been annexed as Exhibit 'D'. In this backdrop, the Petitioner has filed the present Petition on 2nd May, 2012, praying for calling the records and proceedings jvs/vss 2 of 14 wp.1794.2012.doc
pertaining to the detention order passed against her husband Prakash Pandurang Shewale and to quash and set aside the same.
3. The Detaining Authority as well as the Sponsoring Authority have filed reply affidavits to oppose this Petition. After considering the pleadings and the oral arguments canvased before us, the first question that arises for consideration is: whether the Petitioner has locus to challenge the detention order passed against her husband Prakash Pandurang Shewale. The Petitioner, relying on the decision in the case of Additional Secretary to the Government of India and Ors. vs. Alka Subhash Gadia and Anr., (1992) SUPP (1) SCC 496 as also unreported decision of Delhi High Court in Gopa Manish Vora vs. Union of India and Anr. in Writ Petition (Cri) No. 2444 of 2006, decided on 10th February, 2009, contends that the Petitioner, being wife of the proposed detenu, is competent to maintain the Writ Petition. To buttress this submission, the petitioner has relied on the exposition in paragraph 5 in Alka Gadia (supra). The Court has noted that the neat question of law that fell for its consideration was whether the detenu or anyone on his behalf was entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corollary to this question, the incidental question posed is whether the jvs/vss 3 of 14 wp.1794.2012.doc
detenu or the Petitioner on his behalf, as the case may be, is entitled to the copy of the detention order and the grounds on which the detention order is made before the detenu submits or surrenders. The incidental question articulated in Paragraph 5 is not attracted in this case. The Apex Court, in Paragraph 6 of the reported judgment has noted that the articulated questions may arise for consideration also when an order forfeiting the property as a consequence of the detention order as in that case, was passed, and when the detention order is incidentally challenged to question the validity of the order of forfeiture of the property.
4. The tenor of the questions posed in this decision, itself manifest that it deals with the broad issue about permissibility of challenge to the proposed detention order without the detenu submitting or surrendering to it. That is reinforced from the fact that the Apex Court, then goes on to examine the judgments of the Apex Court and the High Courts dealing with the question, as to challenge to the detention order without the detenu submitting or surrendering to it. Those authorities are adverted to in the context of that broad issue. The Apex Court then noted the argument of the parties, in Paragraph 25 and 26 respectively. Indeed, in that case, the Respondent - original jvs/vss 4 of 14 wp.1794.2012.doc
Writ Petitioner was the wife of the proposed detenu. The issue as to whether the wife of detenu can maintain a Petition even though the detenu was very much available for filing such Petition himself, to challenge the detention order against him, but was successfully avoiding his arrest, was not pointedly raised by the Advocate for the Appellant (Union of India). The thrust of the argument, however, as is evident from paragraph 25 of the decision, was on the question, as to whether Petition to challenge the detention order can at all be maintained at the pre-execution stage and the grounds therefor.
5. Concededly, if the detenu has not been taken into custody or has not surrendered before the Authority or Court, there would be no occasion to invoke the remedy for issuance of a writ of Habeas Corpus. By its very nature, the challenge in that situation will be ascribable to a Writ of Mandamus or Certiorari - simplicitor for quashing of detention order at the pre-execution stage. If it is a Petition for issuing a Writ of Certiorari, ordinarily, the party whose rights are affected, must apply for that relief. The exception for a non- party may arise in a case of Habeas Corpus or Quo-Warranto, (see Jasbhai Motibhai vs. Roshan Kumar, (1976) 1 SCC 671). The Apex Court has held that when the Petition for issuance of Writ of Certiorari jvs/vss 5 of 14 wp.1794.2012.doc
is filed by the party aggrieved, the Court should grant the Writ ex debito Justitiae. However, where it is by a person not directly interested, the area of discretion is greater for the Court. Further, whether a person is aggrieved or not is a question of fact depending on the facts and circumstances of each case.
6. The Counsel for the Petitioner relies on the dictum in Paragraph 31 of the decision in Alka Gadia (supra), wherein it is mentioned that it is always open for the detenu or anyone on his behalf to challenge the detention order by way of "Habeas Corpus" Petition on the grounds available to him. The Court further observed that it is therefore not correct to say that no judicial review of the detention order is available. These observations will have to be understood in the context in which the same are made.
7. Indeed, if the Authorities were to issue notice under the provisions of SAFEMA, and even if the proposed detenu remains absconding and evades service of the detention order, the wife may seek assistance of the High Court under Article 226 of Constitution with a view to prevent the proceedings under the SAFEMA. Even in the case of Alka Gadia(supra),in Paragraph 34 of the reported decision,the Apex Court took note of the fact that the detenu's wife sought jvs/vss 6 of 14 wp.1794.2012.doc
assistance of the High Court, under Article 226 of the Constitution of India on behalf of the detenu to secure the order of detention, with a view to defend the proceedings under SAFEMA. The Court then noticed that the proposed detenu is trying to secure the order of detention indirectly without submitting to it. It then went on to observe that the detenu was also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits or surrenders in connection with the order of detention. The Court thus declined to exercise jurisdiction, at the instance of the wife of the detenu, as no prima facie case was made out for challenging the order of detention, which would impel the Court to interfere with it, at the pre-execution stage. This opinion of the Apex Court in Paragraph 34, would mean that, ordinarily, the Petition filed by the wife, to challenge the detention order passed against her husband, at the pre- execution stage, should be discouraged unless prima facie case is made out, which would impel the Court to interfere with the detention order at that stage. That would be the only exceptional situation.
8. In the present case, no notice under the provisions of SAFEMA has been issued to the Petitioner or the proposed detenu so far. The Petitioner, even though is the wife of the proposed detenu, jvs/vss 7 of 14 wp.1794.2012.doc
cannot be allowed to pursue this remedy on grounds which the proposed detenu himself could not have invoked to seek assistance of the Court to issue a Writ of Certiorari in particular. Unless, prima facie case is made out, which would impel the Court to interfere with the detention order passed against the detenu, at the pre-execution stage, it is well established position that the Court must be loath to interdict the process of execution of the detention order.
9. The Counsel for the Petitioner has then relied on an unreported decision of the Delhi High Court in the case of Gopa Vora (supra). This decision is of no avail to the Petitioner. It is not an authority on the proposition that the wife as a matter of course can maintain Writ Petition to challenge the preventive detention order passed against her husband at the pre-execution stage. In this decision, two questions have been addressed. First is, certain circumstances which permit maintaining Writ Petition to challenge the detention order even at the pre-execution stage. The second question was whether the preventive detention order passed some time back and not given effect to in the meanwhile needs to be continued and if continued, would it be an exercise in futility.
jvs/vss 8 of 14 wp.1794.2012.doc
10. We would now proceed to consider the question as to whether the Petitioner has made out prima facie case for challenging the order of detention, which would impel the Court to interfere with it at the pre-execution stage. The first ground urged before us is that no specific role in the commission of prejudicial activities has been made out against Prakash Shewale. This submission is made on the basis of the various statements, materials accompanying the grounds of detention served on the co-detenu Ajit Bapu Satam. Those statements and other materials cannot be the basis to assume that the detention order passed against Prakash Shewale is vitiated, because of lack of material disclosing his complicity and role in commission of the prejudicial activities. That question can be and ought to be answered only after going through the documents and materials that would be served on the Petitioner's husband - proposed detenu along with the grounds of detention. At this pre-execution stage, we do not deem it appropriate to record our opinion at the instance of the Petitioner before us, on the argument under consideration, which is founded on the basis of the materials accompanying the grounds of detention served on the co-detenu.
11. The Counsel for the Petitioner, however, was at pains to point out that it is open to this Court to set aside the detention order jvs/vss 9 of 14 wp.1794.2012.doc
against Prakash Shewale if it suffers from non application of mind and for considering that aspect, the Court may call upon the Authorities to produce the grounds of detention formulated for detaining Prakash Shewale and from that material, if it transpires that the involvement of Prakash Shewale in the commission of prejudicial activities is not established, the order of preventive detention, cannot be allowed to be taken forward against him. For, it would be an order passed for wrong purpose. We are not impressed by this argument. In that, for examining this contention, it would inevitably require us to wade through the entire record, which can be done only after the grounds of detention are served on Prakash Shewale. It is conceded position that said Prakash Shewale was working as an employee of the co-detenu. If so, it does not rule out the possibility of his involvement in abetting the commission of prejudicial activities by the co-detenu. Counsel for the Petitioner has relied on the observations made by the Apex Court in the case of Rajesh Gulati vs. The National Territory of Delhi, AIR 2002 SC 3094, in particular, paragraph 15 thereof. The argument in that case was that the appellant at the worst was a pawn in the hands of another. The likelihood of the appellant indulging in smuggling activities was in any case effectively foreclosed by the retention of his passport by the Customs Department. In the context of that argument, jvs/vss 10 of 14 wp.1794.2012.doc
the Court has made observations which, however, will be of no avail to the present case being filed at the pre-execution stage, unlike the case before the Supreme Court post-execution. Those matters cannot be examined or answered at the pre-execution stage and more importantly, without examining the entire record accompanying the grounds of detention qua the proposed detenu, which is the basis for recording subjective satisfaction by the Detaining Authority.
12. The next point urged before us is that there is unexplained delay in execution of the detention order. According to the petitioner, the detention order must have been passed on 14.3.2012 alongwith the detention order passed against co-detenu Ajit Bapu Satam. In the first place, this ground has not been specifically pleaded in the writ petition. In that case, it is not open to the petitioner to raise this ground across the Bar. However, to reassure ourselves, we called upon the Counsel for the respondents to produce the original record to ascertain whether any steps have been taken by the State Authorities to trace the proposed detenu Prakash Shewale after passing of the detention order against him. From the file, it appears that the detention order has been passed against Prakash Shewale on 17.3.2012 and not jvs/vss 11 of 14 wp.1794.2012.doc
14.3.2012 as was suggested. Further, after passing of the detention order, steps have been taken to trace Prakash Shewale from time to time, but to no avail. Record indicates that all possible attempts to arrest / detain Prakash Shewale in connection with the preventive detention order passed against him have been taken, but those attempts did not materialise for reasons beyond the control of the State Authorities. The State Authorities have eventually moved application for cancellation of bail on having found that the proposed detenu Prakash Shewale was avoiding arrest. That application is still pending consideration before the concerned Court. If the petitioner is right in contending that Prakash Shewale is suffering from some serious ailment and for that reason, the petitioner has been forced to file the present petition, then there is no reason why her husband - Prakash Shewale - was not found at home when the officials visited the petitioner's house to trace him on several occasions. The learned APP has relied on the dictum in the case of Ajayrgt Bajaj vs. State of Maharashtra, 2011 ALL. M.R. (Cri.) 726, which dealt with the similar argument of unexplained delay at pre-execution stage, in particular, in paragraph 34 of the reported decision.
jvs/vss 12 of 14 wp.1794.2012.doc
13. We refrain from making any further observations as the ground of delay in execution has not been specifically raised in the Writ Petition. Further, the detenu or any person claiming through him must allege that there has been inexplicable delay in execution of the detention order and the live link has snapped. If such contention is raised, that can be considered on its own merits after examining the explanation to be offered by the State Authorities at the appropriate stage.
14. No other contention has been pressed by the Advocate for the Petitioner during the hearing.
15. We make it clear that the grounds available to the detenu or anyone on his behalf, in the petition to be filed after execution of the detention order, will have to be examined on its merits in accordance jvs/vss 13 of 14 wp.1794.2012.doc
with law and dismissal of this Petition will not come in the way of the detenu in pursuing the said grounds in any manner.
16. Accordingly, this petition deserves to dismissed and is hereby dismissed.
(A.R. JOSHI, J.) (A.M. KHANWILKAR,J.) jvs/vss 14 of 14