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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, ABHAY AHUJA, JJ.
Ganesh alias Gajaraj Sainath Patil, Pramila Sainath Patil – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Writ Petition No.846 of 2021
Decided on : 29-06-2021
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders/Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-marketing Of Essential Commodities Act, 1981 - Section 3 - Constitution of India, 1950 - Articles 22(5) and 226 - Indian Penal Code, 1860 - Sections 307, 341, 323, 504, 506, 143, 147, 148, 149 - Arms Act - Chapter V - Grounds for Detention - Whether material i.e. single criminal proceeding for offences under Sections 307, 341, 323, 504, 506, 143, 147, 148, 149 of the IPC, alongwith two in-camera statements, would be sufficient for the Detaining Authority to reach its conclusion that Petitioner is a “dangerous person” - Whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of public order is a question of degree and extent of reach of act upon society - Petition ought to be allowed in as much as Detention Order clearly shows a complete non-application of mind and on this ground alone Detention Order deserves to be set aside.
Finding of the Court :
The two in-camera statements, which have been relied upon by Detaining Authority for passing Detention Order, are without recording subjective satisfaction of Detaining Authority. Detaining Authority has himself not personally verified truthfulness of two in-camera statements, so as to ascertain that witnesses are not willing to come forward to give evidence in public against Petitioner by reason of apprehension on their part as regards safety of their person or property - When a person either individually or as a member of a gang habitually commits or attempts to commit or abets commission of offences punishable under Indian Penal Code or any offences punishable under Arms Act, he would stand covered under said definition. Further under Section 3(1) of the MPDA Act may with a view to preventing a person from acting in any manner prejudicial to maintenance of public order issue a Detention Order against that person - On basis of material placed on record and specific criminal proceeding, as also in-camera statements relied upon by Detaining Authority and discussion as above, Court are not convinced that such an extraordinary step of issuance of Detention Order was justified. Nature of such Detention Order is drastic and extraordinary because it results in detaining a person without recourse to the process of trial under ordinary law. Detention without trial is a serious encroachment on fundamental right of a citizen. It has to be based on proper subjective satisfaction recorded on the basis of cogent material indicating that unless such a drastic step is taken, that person is a dangerous person, there would be disturbance to public order. Court are not satisfied that such a drastic action of issuing impugned Detention Order was justified in facts and circumstances of Present case.
Result: Writ Petition is allowed.
JUDGMENT :
ABHAY AHUJA, J.
1. Rule. Rule made returnable forthwith. With the consent of learned counsel appearing for Petitioner and the Respondents-State and its officials, heard finally.
2. By this Petition, filed under Article 226 of the Constitution of India, Petitioner is challenging the order of detention dated 19th January, 2021 (hereinafter called “Detention Order”) issued under Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders/Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-marketing Of Essential Commodities Act, 1981 (the “MPDA Act”) by Respondent No.2-Collector & District Magistrate, Sangli (the “Detaining Authority”).
3. Pursuant to the Detention Order, by a committal order dated 19th January, 2021 passed by Respondent No.2, Petitioner has been detained in the Sangli District Prison.
4. Petitioner contends that Respondent No.2 has mainly relied upon the following three grounds based on which the impugned Detention Order has been passed :-
ii) two in-camera statements dated 26th November, 2020 and 30th November, 2020 and
iii) the criminal antecedents of the detenu as contained in Paragraph 6 of the Grounds for Detention.
5. Petitioner has challenged the Detention Order on the grounds as mentioned in the Petition. However, Mr. Satyavrat Joshi, learned counsel for Petitioner presses for the following grounds as discussed hereunder.
6. The first ground that is being taken up on behalf of Petitioner is that the two in-camera statements, which have been relied upon by the Detaining Authority for passing the Detention Order, are without recording the subjective satisfaction of the Detaining Authority. The Detaining Authority has himself not personally verified the truthfulness of the two in-camera statements, so as to ascertain that witnesses are not willing to come forward to give evidence in public against Petitioner by reason of apprehension on their part as regards the safety of their person or property. He submits that the Grounds for Detention do not mention that he has ascertained the facts mentioned in the in-camera statements, either from the person recording it, i.e., from the police inspector of Islampur Police Station or from the Sub-Divisional Police Officer (S.D.P.O.), who has verified it. He submits that a mere reproduction of the contents of the in-camera statements do not show subjective satisfaction as envisaged in law. He also submits that no effort was made by the Detaining Authority to discuss the matter, either with the police inspector or the S.D.P.O. to verify the authenticity of the statements, so as to ascertain that witnesses are not willing to come forward to give evidence in public against Petitioner by reason of apprehension on their part as regards the safety of their person or property. On behalf of Petitioner, the decision of this Court in the case of Shahjahan w/o. Kalimkhan Samshadkhan Pathan Vs. State of Maharashtra & Anr., (2016) ALL MR (Cri) 4233 is being relied upon.
7. Learned counsel’s next argument is that there is a difference/variance in the Marathi as well as English versions of the Grounds for Detention, as a result of which Petitioner has not been able to make effective representation to the Home Department and, therefore, the Detention Order passed by the Detaining Authority is bad in law, illegal and deserves to be quashed and set aside.
8. He draws our attention to Paragraph 6 of the Grounds for Detention dated 19th January, 2021 to submit that the years of the C.R. numbers mentioned in Marathi are at variance from the years mentioned in the English version of the said grounds and, hence, there is material variance in the two orders, thereby making the said order liable to be set aside. For the sake of completeness, Paragraph 6 of the Grounds for Detention in Marathi, which is annex
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