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2005 Supreme(Bom) 801
IN THE HIGH COURT OF BOMBAY
Charanjitsingh @ Sonu s/o Tilaksingh Digwa @ Bakshi
Versus
State of Maharashtra
Decided on 29.6.2005
Headnote:Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act (55 of 1981) - Section 3 - Constitution of India, Article 22(5) - Detention - Challenged - In-camera version of copies not served - Violation of Article 22(5) - Denial materially affected right to make effective representation - Detention order not sustainable. - In the case before hand, therefore, admittedly, the copies of statements "A" and "B" having been not supplied to the detenu, so also copies of verification of the statements, the petitioner’s right under Article 22(5) has been violated a nd rendered illusory. This has materially affected his right to make effective representation. As a consequence of this, the order of detention passed by respondent No. 2 and app roved by respondent No. 1 stands vitiated.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Section 3(1) - Constitution of India, Article 22(5) - Order of detention. - Non-supply of copies of in-camera statements of witnesses and copies of verification of statements to detenu by detaining authority vitiates order of detention. - It is well-settled that the Court frowns on preventive detention without trial because the detenu is deprived of the right of proving his innocence in a trial by a Court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Article 21 or Article 22(5) of the Constitution should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. Admittedly, the copies of statements having been not supplied to the detenu, so also copies of verification of the statements, the petitioner’s right under Article 22(5) has been violated and rendered illusory. This has materially affected his right to make effective representation. As a consequence of this, the order of detention passed by respondent No. 2 and approved by respondent No. 1 stands vitiated. 2003 (5) Mh LJ 481 : 2004 All MR (Cri) 1974 and 2001 (3) Mh LJ (FB) 580 : 2001 All MR (Cri) 68 - Relied on.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Section 3(1) - Constitution of India, Article 22(5) and (6) - Right of detenu. - Right of detenu to be furnished with particulars is subject to limitation under Article 22(6) of Constitution. - It is no doubt true that, to some extent an exception has been carved out vis-a-vis right of the detenu to be furnished with the facts taking recourse to clause (6) of Article 22 of the Constitution of India. The right of detenu to be furnished with facts and particulars is subject to the limitation mentioned in clause (6) and even if the grounds communicated are not as precise and specific as might be desired, the appropriate authority has right to withhold such facts or particulars, the disclosure of which is considered to be against public interest. But basically, the entire in-camera statement of witnesses though recorded, copies of the same were not furnished to the delinquent. Even it is not the contention of the Additional Public Prosecutor that the copies have been supplied to the detenu of these statements excluding the objectionable portion therein as it was found to be not in the interest of public safety, as has been contended by the Additional Public Prosecutor. In addition to that, it is not even disputed that copies of verification of the statements have not been supplied to the detenu. The Detaining Authority could have supplied copies of the statements omitting the objectionable part of the statement having regard to the public safety and adhering to the limitation envisaged under clause (6) of Article 22 of the Constitution of India. Therefore, contentions raised by the Additional Public Prosecutor in this regard rejected. AIR 1958 SC 163 - Referred.
Evidence Act, 1872 - Section 3 - Appreciation of evidence. - Since case of prosecution is based on documentary evidence maintained in office hence oral evidence cannot be of much importance.
Evidence Act, 1872 - Section 3 - Appreciation of evidence. - A prima facie case can be defined as a case which can stand at trial.
CONSTITUTION OF INDIA, 1950 - Article 22(5) Detention order challenged Detenu’s right to get all reports Non-supply of vital documents, right guaranteed under constitution violated Detention order quashed and set aside. In the case before hand, therefore, in our considered opinion, admittedly, the copies of statements "A" and "B" having been not supplied to the detenu, so also copies of verification of the statements, the petitioner’s right under Article 22(5) has been violated and rendered illusory. This has materially affected his right to make effective representation. As a consequence of this, the order of detention passed by respondent No. 2 and approved by respondent No. 1 stands vitiated.
Copies of verification were not furnished, so also the copies of in camera statements and it was a case of non-supply of documents relied upon by the Detaining Authority which affected right of detenu under Article 22(5) of the Constitution and as a result of that, order of detention was liable to be quashed. A decision of High Court in Subhangi Tukaram Sawant v. Shri R.H. Mendonca and others, 2001 (Supp) Bom CR (FB) 526 : 2001 All MR (Cr) 68, the order of detention was quashed and set aside on the ground that the in camera statements were though recorded by Senior Police Officer and were verified by the Assistant Commissioner of Police, copies of verification of statements were not supplied. In the result, following order is passed.
P. S. BRAHME, J.
( 1 ) HEARD the learned counsel for the parties.
( 2 ) THROUGH this Writ Petition preferred under Articles 226 and 227 of the constitution of India, the petitioner-detenu has impugned the detention order dt. 10-09-2004 passed by respondent no. 2 the Commissioner of Police, Nagpur City, detaining him under sub-section (1) of Section 3 of the Maharashtra prevention of Dangerous Activities of slumlords, Bootleggers, Drug Offenders and dangerous Persons Act, 1981.
( 3 ) THE detention order, along with the grounds of detention, dt. 10-09-2004 was served on the detenu on 03-11-2004. The detention order and the grounds of detention have been annexed as Annexures "a" and "b" respectively to the Petition.
( 4 ) THOUGH the learned counsel challenges the detention order on various grounds, he pressed into service his contention that the copies of in-camera statements of the witnesses i. e. Annexures "a" and "b" have not been furnished to the petitioner/detenu and thereby right of the detenu under Article 22 (5) of the Constitution of India has been violated which, in result, vitiates the order of detention. The learned counsel for the petitioner also submitted that the copies of verification of in- camera statements recorded by the Assistant commissioner of Police have not been supplied to the petitioner, which also vitiates the order of detention as being in violation of Article 22 (5) of the Constitution of India since the detenu/petitioner has been deprived of the opportunity to make effective representation.
( 5 ) ADMITTEDLY, the copies of in- camera statements Annexures "a" and "b", as also verification of statements have not been supplied to the detenu by the Detaining authority.
( 6 ) PETITIONER has challenged the order of detention on several grounds as indicated in the petition. However, since we are of the opinion that the petition deserves to be allowed in view of the decision of the Apex Court in kamla Kanhaiyalal Khushlani Vs. State of maharashtra and another, AIR 1981sc 814 and the same being followed by this Court in the Criminal Writ Petition No. 716 of 2004, decided on 15-02-2005, we are not adverting to several other grounds raised by the petitioner in the petition.
( 7 ) MR. Sonare, learned Additional public Prosecutor submitted that the petitioner is not entitled to raise the contention as to challenge to the order of detention on the ground that copies of in-camera statements have not been furnished to him as, in the petition, the petitioner has not taken specific ground in that regard. That apart, the learned additional Public Prosecutor, placing reliance on the decision of the Apex Court in Puranlal lakhanpal Vs. Union of India, AIR 1958 SC 163, submitted that the right of detenu to be furnished with facts or particulars under Article 22 (5) of the Constitution of India is subject to the limitation mentioned in Clause (6) and even if the grounds communicated are not as precise and specific as might be desired, the appropriate authority has the right to withhold such facts and particulars, the disclosure of which it considers to be against public interest.
( 8 ) BEFORE we advert to the contentions raised by the learned counsel for the parties, we think it appropriate to consider the decision of the Apex Court in AIR 1981 sc 814 (supra ). The crux of the decision of the Apex Court is that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari-passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation aga'inst the order of detention. Before an order of detention can be supported, the constitutional safeguards must be strictly observed.
( 9 ) THE Apex Court in Para 5 of the judgment observed as under :
"this Court in Maneka Gandhi Vs. Union of India (1978)2 SCR 621 : (AIR 1978 SC 597) has widened the ho
