Point of Law: Delay in execution of detention Order - The unreasonable delay in executing order created a serious doubt regarding genuineness of detaining authority as regards immediate necessity of detaining petitioner in order to prevent him from carrying on prejudicial activity referred to in grounds of detention order of detention was passed by detaining authority not in lawful exercise of power vested in him.

JUDGMENT :

S.S. SHINDE, J.

1. Rule. Rule made returnable forthwith and heard with the consent of learned counsel appearing for the parties.

2. On 29.07.2020, an order of detention under Section 3(2) of the Maharashtra Prevention Of Dangerous Activities Of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons And Video Pirates Act, 1981 (the “MPDA Act”) was issued by Respondent No. 1 i.e. Commissioner of Police Nagpur City, for the offences registered vide C.R. No. 159/2020 with Sadar Police Station for the offences punishable under Section 387, 452, 120 (b), 506 (b) of IPC and C.R. No. 221/2020 registered with Wathoda Police Station for the offences punishable under Section 4/25 of Indian Arms Act read with Section 135 of Maharashtra Police Act. The two in-camera statements of witnesses “A” and “B” are also taken into consideration by the detaining authority to arrive at his subjective satisfaction while passing the detention order. On 08.03.2021, a representation was sent to the State Government through Superintendent, Central Prison, Nashik Road, Nashik and Nagpur Central Prison, Nagpur, for expeditious consideration and revocation of the order of detention.

3. Learned counsel for the petitioner submits that the representation of the petitioner was not considered expeditiously by the State Government. There is delay in execution of detention order. It can be gathered from the allegations made in the C.R. No. 159/2020 with Sadar Police Station for the offences punishable under Section 387, 452, 120 (b), 506 (b) of IPC and C.R. No. 221/2020 registered with Wathoda Police Station for the offences punishable under Section 4/25 of Indian Arms Act read with Section 135 of Maharashtra Police Act that the statements of witnesses “A” and “B” are vague, and no public order is disturbed. It is submitted that the word disjunctive ‘or’ used in Para 2 of the grounds of detention shows non application of mind.

4. In support of contention that there is delay in execution of the order of detention, learned counsel for the petitioner placed reliance on judgments in the case of SMF Sultan Abdul Kader vs. JT Secy. to Govt. of India and Others, (1998) 8 SCC 343, K.P.M. Basheer vs. State of Karnataka and Another, (1992) 2 SCC 295, P.M. Hari Kumar vs. Union of India and Others, (1995) 5 SCC 691, Manju Ramesh Nahar vs. Union of India and Others, (1999) 4 SCC 116, Ismail Shaikh Ali vs. State of Maharashtra and Others, (1998) All MR (Cri) 928, Shri Netaji N. Lotikar vs. State of Goa and Another, 1992 Cri. L.J. 2363 and Iqbal vs. Union of India and Others, JT 1991 (6) SC 496.

5. In support of contention that there is unexplained delay in considering representation of the detenue, learned counsel placed reliance on judgments in the cases of Rama Dhondu Borade vs. V.K. Saraf and Others, (1989) 3 SCC 173, Harish Pahwa vs. State of U.P. (1981) 2 SCC 710, Rohit Sidhram Khatal, Cri. W.P. No. 1576 of 2020, Aslam Ahmed Zahir A. Shaikh vs. Union of India, 1989 Cri. L.J. 1447 and Vilas Shankar Dhande vs. Commissioner of Police and Others, 2012 All MR (Cri) 1118.

Therefore, learned counsel appearing for the petitioner submits that the writ petition may be allowed.

6. On the other hand, Mr. Yagnik, the learned APP appearing for Respondents-State relying upon the reasons assigned in the order of detention, so also affidavit filed by Dr. Bhushan Upadhyay, the then Commissioner of Police, Nagpur City, Nagpur, Mr. Amitesh Kumar, Commissioner of Police, Nagpur City, Nagpur and Mr. Shirish Mohod, Deputy Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, and submits that the impugned order of detention is perfectly justified in law and therefore, the petition may be dismissed. Learned APP invited our attention to the averments in the said affidavits in reply, so also the original record, during the course of hearing of the writ petition.

7. We have given due consideration to the submissions of learned counsel for the petitioner and learned A