Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. SHINDE, N.J. JAMADAR, JJ.
Shri Sanjeev @ Sanjay @ Tatyasaheb Nagnath Upade – Petitioner
Versus
The Commissioner of Police, Solapur – Respondent
Criminal Writ Petition No. 3035 of 2021
Decided On : 30-09-2021
Constitution of India 1950 - Article 22(5) - Maharashtra Prevention of Dangerous Activities Act, 1981 - Section 3 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(2) (Va), 3(1)(R)(S), Indian Penal Code 1860 - Section 143, 144, 147, 323, 504, 506 - Order of detention - Prejudicial activities - Detaining authority placed reliance upon in-camera statements of two witnesses and one C.R. registered with Police Station for offences punishable of IPC read with Section of Act, 1989 - In-camera statements of two witnesses about incidents alleged to be taken place and detention order has been passed - Therefore, there is a considerable delay in between date of alleged incidents, recording of in-camera statements and passing of order of detention. Therefore said in-camera statements cannot be relied upon and in case those statements are excluded from consideration what remains is only one offence - Whether prejudicial activities of a person necessitating to pass an order of detention is proximate to time when order is made or live-link between prejudicial activities and purpose of detention is snapped depends on facts and circumstances of each case?
Finding of the Court:
No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between offending acts and the order of detention - There is no denial to fact that in-camera statements of witnesses were recorded for the incidents occurred in the month of January 2021 and February 2021, however, order of detention was passed in the month of May, 2021, so there is considerable gap between the recording of in-camera statements about alleged incident happened in the month of January and February 2021 and passing of impugned order of detention, while C.R. was registered with Police Station. Even from the registration of aforesaid offence there is a delay of three months in passing impugned order of detention. What matters is explanation offered by the respondent authorities for such considerable delay - It clearly appears that that no such copy of report which is mentioned in Ground (d) was supplied to the detenu. There is a mention in the reply that there was mention about said report in remand application, but same was not supplied as per requirement in law - it follows from the aforesaid two authoritative pronouncements of Supreme Court that material or documents relied upon by detaining authority while passing the order of detention needs to be supplied to the detenu so as to enable him to make an effective representation - Hence Court is of view that detention order cannot be legally sustained.
Result: Appeal allowed.
JUDGMENT :
S.S. SHINDE, J.
1. This petition takes an exception to the order of Detention bearing No. D.O. No. 07/CB/DP/2021 dated 17.05.2021 issued under Section 3 of the Maharashtra Prevention of Dangerous Activities Act, 1981 (M.P.D.A. Act) by the Respondent No. 1.
2. During the course of hearing, the learned counsel for the petitioner restricted her arguments to the contentions raised in grounds (b) and (d).
3. It is submitted that there was delay in passing the order of detention. Learned counsel for the petitioner invites attention of this Court to the ground no. (b), so also the affidavit fled by respondent and submits that there is a considerable delay in passing the order of detention and on that ground alone the petition deserves to be allowed.
In support of aforesaid contention, the learned counsel pressed into service the judgments of Hon’ble Supreme Court in the cases of Pradeep Nikant Paturakar vs. S. Ramamurthi and Others, 1993 Supp. (2) SCC 61, Shakeel Sait vs. C.D. Singh and Others, Cr. W.P. No. 429/1996, Niyazuddin and Sonu Ansari vs. State of Maharashtra, 2013 All MR (Cri) 3870, Mohsin Ahmed vs. State of Maharashtra, 2014 All MR (Cri) 2409, Parvez Faizulla Khan vs. A.K. Roy and Others, Cri. W.P. No. 1018 of 2007 and Aalam Yousuf Shaikh vs. Commissioner of Police Pune, Cri. W.P. No. 4180 of 2017.
4. Learned counsel appearing for the petitioner further submits that it was incumbent upon the respondent authority to place on record the report submitted by the investigating officer in C.R. No. 127/2021, thereby adding Section 3(2) (Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
In support of aforesaid submission, the learned counsel for the petitioner placed reliance on the ratio laid down in the following judgments of Hon’ble Supreme Court in the cases of V.C. Mohan vs. Union of India and Others, 2002 SCC (Cri) 648, Kamlal K. Khushlani vs. Union of India, 1981 SC 814 and Union of India vs. Ramu Bhandari, (2008) 17 SCC 348.
5. It is submitted that the detaining authority placed reliance upon the in-camera statements of two witnesses and one C.R. No. 127/2021 registered with Faujdar Chawadi Police Station for the offences punishable under Section 143, 144, 147, 323, 324, 504, 506 of IPC read with Section 3(2)(Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is submitted that the in-camera statements of two witnesses recorded on 1st March 2021 and 3rd March, 2021 about the incidents alleged to be taken place in the month of January, 2021 and February 2021 and detention order has been passed on 17th May, 2021. Therefore, there is a considerable delay in between the date of alleged incidents, recording of in-camera statements and passing of order of detention. Therefore the said in-camera statements cannot be relied upon and in case those statements are excluded from consideration what remains is only one offence (C.R. No. 127/2021) registered against the petitioner. Therefore, the learned counsel appearing for the petitioner prays that the petition may be allowed.
6. On the other hand, the learned APP appearing for Respondent-State and its officials relied upon the affidavit in replies fled by the Commissioner of Police, Solapur City, Solapur and Deputy Secretary Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai and submitted that the detention order has been passed in accordance with the procedure under the M.P.D.A. Act. It is submitted that the detaining authority specifically stated that the petitioner has committed offences which would fall within the Chapter XVI and XVII of IPC. The authority has also perused the in-camera statements of witnesses and arrived at the subjective satisfaction and passed the order of detention. It is submitted the DCP who scrutinized the proposal of detention was tested positive of Covid-19 and he was on medical leave from 26th February, 2021 to 18th March, 2021, and, therefore, there was a
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
