wp999.16.J.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.999 OF 2016
Rajkumar @ Anda s/o Jaglal Jaiswal
Age - Major, Occupation - Pvt.
R/o Shivarpan Nagar, Nalwadi,
Tahsil & District Wardha. ....... PETITIONER
...V E R S U S...
1] State of Maharashtra,
through Home Department (Special),
2nd Floor, Main Building, Mantralaya,
Mumbai-32.
2] District Magistrate,
District Wardha.
3] Police Station Officer,
Police Station, Wardha City,
District Wardha. ....... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri A.M. Jaltare, Advocate for Petitioner.
Shri A.S. Ashirgade, APP for Respondent Nos.1 to 3.
-------------------------------------------------------------------------------------------
CORAM: B.P. DHARMADHIKARI AND
V.M. DESHPANDE, JJ.
th APRIL, 2017.
DATE: 13 ORAL JUDGMENT: (PER B.P. Dharmadhikari, J.) 1] The petitioner a detenu assails order of detention
dated 12.09.2016 passed by respondent No.2 under Section 3 of ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 2/9 the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981. (hereinafter referred to as 1981 Act). This Court had issued notice on 23.12.2016 for final disposal. It was made returnable on 19.01.2017. 2] On 29.03.2017 matter was listed before this Bench and perusal of original records was felt essential. Hence, matter came to be adjourned. It has been heard today finally. Accordingly, we issued Rule and made it returnable forthwith by consent of parties.
3] Advocate Jaltare, appearing for petitioner has in addition to other points, submits that out of total 28 cases mentioned in chart forming of proposal, petitioner has been acquitted from 22 cases. Only 4 cases out of remaining 6 pending were relevant and have been looked into by the authority, but then acquittal from 2 cases has been overlooked. He further submits that in offence mentioned at Sr. No.25 i.e. Crime No.0014/2013 of Police Station Deori, petitioner had been granted bail by this Court in Criminal Application No.169 of 2014, ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 3/9 after noticing that identity of present petitioner as Driver of the Car has not been established. This important observation has also been lost sight while passing the order of detention. 4] Inviting attention to in-camera statement of witness-A dated 24.08.2016 and in-camera statement of witness-B dated 25.08.2016, he urges that portion removed from it to suppress identity of the concerned witnesses in fact rendered entire document useless. According to him, content remaining therein do not make any sense and hence, an opportunity to effectively defend himself stands negated. He relied upon the decision of this Court in the case of Shri Abdul Rehman Abdul Wahid Vs. Shri D.N. Jadhav & Ors. reported in 2008 ALL MR (Cri) 2497, to buttress his submission that supply of such incomplete document tantamounts to non-supply thereof and therefore, vitiates the order of detention. Lastly, the verification of in-camera statements allegedly done by S.D.P.O. is shown to this Court in order to demonstrate that those in-camera statements or then verification thereof by S.D.P.O. has not been scrutinized by the respondent No.2-Detaining Authority personally and there is no subjective satisfaction in that respect. Support is being taken of judgment dated 01.02.2016 delivered by this Bench in Criminal Writ ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 4/9 Petition No.768 of 2015.
5] In addition he points out that petitioner has received two orders of detention signed in original and on same date. He states that there can be only one order of detention. 6] Learned APP has from records received by him, produced an envelope (seal) containing original in-camera statements. He submits that perusal of order of detention reveals that in paragraph 4 (E) those statements are looked into then other material has also been considered and thereafter conclusions are recorded in paragraph 5. He invites attention of the Court to the fact that if, the portion removed from copies of in-camera statement supplied to the petitioner are retained, identity of witness will be immediately known and purpose of recording those statements secretly therefore, will be defeated. He contends that documents supplied contained necessary details in order to enable petitioner to understand the purpose thereof and hence, opportunity to effectively defend has not been denied. He further contends that entire history has been looked into and in the light of in-camera statements, the other material as mentioned in proposal, subjective satisfaction has been reached. The chart of previous police reports contained in proposal is ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 5/9 pressed into service to urge that last of offence mentioned therein i.e. 0334 of 2016 is committed on 09.06.2016 and investigation therein is still pending. In-camera statements recorded bring on record subsequent events and hence live link is established. He therefore, argues that if total material on record is looked into, alleged omission to consider the observation of this Court while granting bail, not expressly mentioning the fact of acquittal from two cases or use of in-camera cases do not in any way vitiate the impugned order. Order shows proper application of mind and it is neither perverse nor erroneous. He therefore, requests the Court to dismiss the writ petition.
7] We have perused case papers with the assistance of both the counsels. In-camera statements served upon petitioner 24.08.2016 and 25.08.2016. The said statements in margin carry remark by S.D.P.O., which translated will read "verified, speaks correctly as written". The original produced before us carry signature of in-camera witnesses obviously those signatures could not have been and are not communicated to petitioner. However, when original of in-camera statement dated 24.08.2016 i.e. of witness-A was perused by us, it became clear that signature was placed on it leaving some space after statement and not put ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 6/9 as per alignment of the page. Its orientation is not as is expected even after making allowance for the education of said person as disclosed. He was required to leave his education, but then unnecessary gap as blank space between statement and signature gives some other impression.
8] In insofar as statement of witness-B is concerned, orientation of his signature again gives similar impression. We are constrained to comment on this because original in-camera statements do not carry any endorsement by Detaining Authority to show that it has perused the same. There is no mention that the Detaining Authority has personally discussed the position or statements with S.D.P.O. who has verified the same. As such material on record falls short to show application of mind by Detaining Authority to cardinal aspect necessitating recording of in-camera statements.
9] Impugned order in paragraph 4 (E) only mentions in-camera statements as a fact. The actual application of mind starts from paragraph 5 in order in English language. In that paragraph while recording subjective satisfaction, no observation on correctness of procedure followed by S.D.P.O appears. There is ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 7/9 no observation that Detaining Authority was satisfied that witnesses-A and B or witnesses in general were not willing to come forward and depose because of fear of petitioner. The Detaining Authority has not put any thing on record to enable us to gather that it was alive to the facet, mentioned, supra. 10] Perusal of in-camera statement of witness-A reveals that detenu was in contact with this witness and had offered him some amount in consideration. This witness has not fallen prey to his threats. Statement of witness-B is again on same line. These witnesses do not speak of any specific incident or any event of any particular date. Thus, in-camera statements are general in nature.
11] Advocate Jaltare has pointed out that in impugned order, there is a finding in paragraph 5 that petitioner has encouraged young illicit liquor seller to indulge themselves in illegal activities. This practice or attitude of the petitioner was not appearing in proposal. Line before it in the impugned order states that petitioner is fully engaged in transportation and selling illicit liquor. In view of contention that there is also an order in Marathi on record, the same was perused and in Marathi order, in ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 8/9 paragraph 5 following lines appear.
ßvki.k o/kkZ ftYg;kP;k yxrP;k ftYg;krqu voS/kjhR;k nk#ph
okgrqd o fodzh dj.;kr ljkbZr >kys vlqu lnjP;k voS/k
dkekr vki.k brj ;qodkaukgh R;kr xqjQkVqu xqUgsxkjh fo'okr
<dyys vkgs-Þ
Thus, in Marathi order it is claimed that the petitioner has developed expertise in illegal transport and sale of liquor from districts adjacent to Wardha District and he has also pushed youth into it and in world of criminals.
12] We need not observe more in this connection. There can be only one original order and it can be either in English or Marathi and its translation thereafter can be certified as true translation.
13] In present matter, as we find that in-camera statements have been mentioned in impugned order and on that basis an order of detention has been passed, in the absence of proper verification by Detaining Authority and subjective satisfaction by it in that respect, on all relevant facet, the order is unsustainable. There is no subjective satisfaction by Detaining Authority either on correctness of verification exercise carried out ::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 ::: wp999.16.J.odt 9/9 by S.D.P.O. or on fear in mind of in-camera witnesses and the atmosphere of fear and terror. In view of this finding other contentions raised by Advocate Jaltare are kept open and will be looked into in more appropriate facts.
14] Accordingly, order of detention dated 12.09.2016 is hereby quashed and set aside. The detenu be set free immediately, if his custody is not required by police in any other matter. The criminal writ petition is allowed. Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE JUDGE
NSN
::: Uploaded on - 17/04/2017 ::: Downloaded on - 18/04/2017 00:38:56 :::