IMPORTANT POINT
A solitary act cannot constitute habitual offending under the MPDA Act, and discrepancies in witness statements can violate a detainee's right to make an effective representation, leading to the quashing of a detention order.

Headnote:
DETAINING AUTHORITY - DETENTION UNDER MPDA ACT - Maharashtra Prevention of Dangerous Activities Act, 1981, Sec. 3(2), Sec. 2(b-1), Article 22(5) of the Constitution - The court examined the detention order issued under the MPDA Act, focusing on the reliance on in-camera statements and a solitary criminal case. It highlighted discrepancies in witness statements that undermined the authenticity of the evidence. The court emphasized the necessity for the Detaining Authority to demonstrate subjective satisfaction and concluded that the detention order was invalid due to insufficient grounds, ultimately violating the petitioner's right to make an effective representation.
Fact of the Case:
The petitioner challenged a detention order issued under the MPDA Act, citing discrepancies in in-camera witness statements and arguing that the reliance on a solitary criminal case did not establish habitual offending as required by the Act.
Finding of the Court:
The court found significant variances in the in-camera statements and determined that the reliance on a single criminal case was insufficient to classify the petitioner as a habitual offender. The discrepancies impeded the petitioner's ability to make an effective representation, violating their rights under Article 22(5) of the Constitution.
Issues: Whether the detention order was valid given the reliance on inconsistent witness statements and a solitary criminal case, and whether the petitioner was deprived of the right to make an effective representation.
Ratio Decidendi: The court held that variances in witness statements and reliance on a solitary incident do not meet the threshold for establishing habitual offending under the MPDA Act. The failure to provide a coherent basis for detention violated the petitioner's constitutional rights.
Final Decision: The court quashed the detention order and ordered the immediate release of the petitioner, finding the detention to be illegal and unjustified.

JUDGMENT/ORDER

GAURI GODSE, J. - This petition is filed challenging the order of Detention bearing No. TC/PD/DO/MPDA/20/2022, dtd. 8/12/2022, issued by Commissioner of Police, Thane - Respondent No. 1, in the exercise of the powers conferred by Sub-Sec. (2) of Sec. 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 ("the MPDA Act").

2. The Detaining Authority in the said order has referred to the details of the criminal cases in which the petitioner is involved during the period from the year 2018 to 2021. A perusal of the detention order shows that C.R. No. 406 of 2022 registered for the offences punishable under Secs. 324, 323, 327, 143, 147 and 149 of the Indian Penal Code and two in-camera statements are relied upon by the Detaining Authority. The detention order further refers to the particulars of the in-camera statement recorded of the two witnesses.

3. The petitioner had filed representation dtd. 14/3/2023 before the jail authorities, which was forwarded to the State Government through the Superintendent, Nashik Road, Central Prison. The representation filed by the petitioner is rejected by the respondent no. 2.

4. The petition raises various grounds to challenge the order of detention; however, the learned counsel for the petitioner has pressed into service grounds (d) and (e) of paragraph 5 of the petition, which read as under :

(d) The petitioner says and submits that in the compilation of documents given to the petitioner, there is a Proposal forwarded by the sponsoring authority to the detaining authority dtd. 27/10/2022, in the said proposal, there is a gist of narration of the in-camera statements of witness A and B. The petitioner says and submits that there are major variance/discrepancy the gist of the in-camera statements given in the proposal as compared with the statement of in-camera witness A and B. The proposal forwarded to the detaining authority must be in consonance with the actual documents placed on record. It is pertinent to note that in the proposal confidential statement of witness 'A' the witness narrates the incident as "two months prior, he does not remember the exact date at about 10.30 p.m......" when compared with the actual in camera statement, witness A states "in the month of September 2022, in the second week at about 8.30 p.m." (date of recording of the said in camera statement is given as 21/10/2022) hence the discrepancy throws doubt on the genuineness and the authenticity of the said in camera statement. Likewise in the proposal confidential statement of witness 'B' the witness narrates the incident occurred "about one to one and a half months prior, he does not remember the exact date at about 10.00 p.m. he was travelling from Ulhasnagar station he was going to his home...." when compared with the actual in camera statement witness B states "in the month of September (year and week or date not disclosed)....." (date of recording of the said in camera statement is given as 22/10/2022) Both the incidents if calculated from the dates mentioned in the proposal ought to have occurred in the month of July or August., and if in camera statements are to be considered plainly then the question about the dates given in the proposal are under a shadow of doubt. Also, both the statement if minutely read seems to be copied from one another, reason being the activities, modus operandi etc. is exactly the same, only changes are made in the time and place of the incident. Hence the statements are not true and genuine, such vague statements cannot be taken into consideration to pass a detention order. The petitioner further submits that due to the variance the petitioner was deprived of making any effective representation. The order of detention is illegal and bad in law liable to be quashed and set aside.

(e) The petitioner says a

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2023 Supreme(Bom) 2253

IN THE HIGH COURT OF BOMBAYRevati Mohite Dere, Gauri Godse, JJ.Harvinder - AppellantVersusCommissioner of Police - RespondentCriminal Writ Petition No. 1029 of 2023Decided On : 12-06-2023

IMPORTANT POINTA solitary act cannot constitute habitual offending under the MPDA Act, and discrepancies in witness statements can violate a detainee's right to make an effective representation, leading to the quashing of a detention order.

Cases Referred (4)

IN THE HIGH COURT OF BOMBAY
Revati Mohite Dere, Gauri Godse, JJ.
Harvinder - Appellant
Versus
Commissioner of Police - Respondent
Criminal Writ Petition No. 1029 of 2023
Decided On : 12-06-2023

IMPORTANT POINT
A solitary act cannot constitute habitual offending under the MPDA Act, and discrepancies in witness statements can violate a detainee's right to make an effective representation, leading to the quashing of a detention order.