Compliance Of Procedural Safeguards In Preventive Detention, However Technical, Mandatory: Bombay High Court Grants Relief To Advocate, Clients

A division bench of Justice Revati Mohite-Dere and Justice Sharmila U Deshmukh observed that the orders were passed without application of mind, no material was placed before the detaining authority to conclude that the detenues threatened the peace and tranquility of the public.

“the detenues, a law intern, his father and their Advocate, have been slapped with detention orders. The Detaining Authority has gone to the extent of stating in its detention order that the detenue in Criminal Writ Petition No. 706/2023 ‘is studying law with the intent to cheat people’, something, completely preposterous. With great power comes great responsibility”, the court observed.

Considering that the detenues had to remain in custody since November 10, 2022 despite detention orders not being based on any material, the court also awarded costs of Rs. 20,000 to each detenue. Additionally, the court called upon the concerned authorities to organize workshops for officers responsible for dealing with detention laws.

The court was dealing with three petitions seeking quashing of detention orders passed by the District Magistrate of Silvassa, Dadra & Nagar Haveli and Daman & Diu, under the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA Act).

According to petitioner Vishal Shrimali, a lawyer, he advised law student Prithvisinh Rathod to file a complaint under Section 133 of the CrPC before the Sub-Divisional Magistrate for removal of nuisance caused by dumping marble waste near his land. Despite filing several representations before authorities such as Resident Deputy Collector, Gujarat Pollution Control Board, Pollution Control Committee, Collector, Valsad District etc., no action was taken, he claimed.

Shrimali claimed that eight false FIRs were registered against him at the behest of the marble lobby. While he was in judicial custody, a detention order dated December 6, 2022, was issued to him under section 3(2) of the PASA Act. Shrimali claimed that he only got to know about the detention order on January 17, 2023, when he was not released from jail despite getting bail.

Several FIRs were also lodged against Prithvisinh and his father Ashoksinh for offences such as extortion and cheating. A detention order dated December 12, 2022 was issued against them.

Thus, Shrimali challenged his detention order and Prithvisinh’s mother Sangeeta challenged the detention orders against her son and her husband before the High Court.

The court found that though “upon perusal of the documents on record” is stated, no documents were actually presented to the District Magistrate. The basis on which the Detaining Authority reached its subjective satisfaction is also not clear, the court said. Further, the court noted that the Rathods were not furnished with substantial material in order to make a representation under Article 20(5) of the Constitution, apart from the three-page detention order.

The court concluded that the detention orders were passed in a mechanical and cavalier manner, amounting to abuse of law of preventive detention. Thus, the court quashed the detention orders and ordered immediate release of the detenues, unless required in any other case.

The court emphasized that preventive detention, as an anticipatory measure unrelated to a specific offense, should be strictly construed, and adherence procedural safeguards is mandatory, however technical.

“Under the detention law, a person’s greatest of human freedoms i.e. personal liberty is deprived and hence, it is imperative that the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical, is mandatory...Our courts have always regarded personal liberty as the most precious possession of mankind and have shown no tolerance to illegal detention. Where personal liberty is concerned, it is not permissible to take a generous view of the lapses and condone the same”, the court observed.

The court posted the matter for compliance on July 14, 2023.

Advocates Ashok Mishra, Ameet Mehta, Kinjal Mehta, Jilesh Sanghavi, Hrishikesh Naik and Madhu Ravi of M/s. Solicis Lex represented Vishal Shrimali.

Advocates Manoj Badgujar and Aniruddh Parmar represented Sangeeta Rathod.

Special Public Prosecutor HS Venegavkar along with Advocate Kamar Ali Shaikh represented the Union Territory of Daman and Diu and APP MH Mhatre represented the State of Maharashtra.

Case no. – Criminal Writ Petition Nos. 560, 706, and 707 of 2022

Case Title – Vishal Kanhaiyalal Shrimali v. Union Territory of Daman and Diu and Ors. with connected cases