“With Great Power Comes Great Responsibility”- Bombay HC While Quashing ‘Casual’ Detention Orders Of District Magistrate

The Bombay High Court while deciding a batch of pleas has quashed the ‘casual’ detentions orders passed by the District Magistrate, Dadra and Nagar Haveli saying that with great power, comes great responsibility.

A Division Bench comprising Justice Revati Mohite Dere and Justice Sharmila U. Deshmukh held, “With great power comes great responsibility. Thus, greater the power, greater the responsibility. Whilst authorizing detention, it is the bounden duty of the authority to act responsibly and with circumspection and in accordance with law, since under the detention law, a person is deprived of his/her personal liberty. We find that the detention orders have been passed mechanically and casually, contrary to law. The detenues on the basis of the detention orders were in custody since 10th November 2022. The delay in hearing the petitions were because the papers had to be translated from Gujarati to English.”

The Bench said that the detenues were required to remain in custody pursuant to the detention orders, in the absence of any material being produced before the Authority which is nothing but the travesty of justice.

Advocates Ashok Mishra, Ameet Mehta, and Manoj Badgujar represented the petitioners while Spl. PP H.S. Venegavkar with Advocate Kamar Ali Shaikh represented Union Territory and APP M.H. Mhatre represented the State.

In this case, a petition was preferred under Article 226 of the Constitution of India, and the petitioner, an advocate, sought quashing and setting aside of the order passed by the District Magistrate, Dadra and Nagar Haveli under Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA Act).

The principal ground on which quashing of the order invoking the PASA Act was sought, was the non-handing of documents, on which reliance was placed by the Detaining Authority, as reflected in the order. Apart from the said ground, several other grounds were also raised in the petition, however, since the petition ought to succeed on this very ground, it was not necessary to delve into the other grounds raised in the petition by the court.

The High Court in the above regard observed, “The facts in this case are peculiar. The manner in which the detention orders have been passed are extremely casual, passed in a cavalier manner with complete non-application of mind by the Detaining Authority. … Ambrose Bierce said that Liberty is one of imagination’s most precious possessions and Edmund Burke said, ‘whenever a separation is made between liberty and justice, neither, in my opinion, is safe.’ Our courts have always regarded personal liberty as the most precious possession of mankind and have shown no tolerance to illegal detention.”

The Court further noted that where personal liberty is concerned, it is not permissible to take a generous view of the lapses and condone the same and that in cases of preventive detention, strict adherence/observance of procedural safeguards is mandated, so that liberty of a person is not compromised by an arbitrary exercise of power.

“In the facts, we find that detention orders have been passed without adverting to any material/record and though stated, there being ‘no material on record’ for perusal. In the facts, there has been infraction of Article 21 of the Constitution of India”, said the Court.

The Court also noted that 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”, said the Court.

The Court, therefore, directed the Union Territory of Daman and Diu to pay a sum of Rs. 20,000/- as a cost to each of the detenue within a period of four weeks saying that it hopes that the UT will take steps to conduct a workshop for the officers dealing with detention laws.

Accordingly, the Court allowed the pleas and quashed the detention orders.

Cause Title- Vishal Kanhaiyalal Shrimali v. Union Territory of Daman and Diu & Ors. (Neutral Citation: 2023:BHC-AS:15606-DB)

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