1 WP158.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 158/2017
Majoj Bhausaheb Padale
Aged 27 years, Residing at
Vikash Nagar, Near Ganpati Temple,
Pune ..... Petitioner
Versus
1. The Commissioner of Police,
Pune City
2. The State of Maharashtra
(Through Addl. Chief Secretary)
to Government of Maharashtra
Mantralaya, Home Department
Mantralaya, Mumbai)
3. The Superintendent,
Amravati Central Prison,
Amravati ..... Respondents
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Shri R.Vyas, Adv. for the Petitioner
Shri S.S. Doifode, A.P.P for the Respondents
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CORAM : Smt. Vasanti A. Naik &
M.G. Giratkar, JJ.
DATE : 26/09/201 7 Oral Judgment (PER:- Smt. Vasanti A. Naik, J.) RULE. Rule made returnable forthwith. The writ petition is heard ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 2 WP158.2017 finally at the stage of admission with the consent of the learned counsel for the parties.
By this criminal petition, the petitioner challenges the order of the detaining authority, detaining the petitioner under section 3 (2) of the Maharashtra Prevention of Dangerous Activities Act, 1981. The order of the State Government confirming the order of the detaining authority is also challenged.
Shri Vyas, the learned counsel for the petitioner submitted that the impugned order is liable to be set aside as though the detaining authority has relied on the offences registered against the petitioner at Serial Nos. 5, 6, 7, 8 and 9 in the chart incorporated in Para 3 of the order of detaining authority in the grounds of detention, it has not given the particulars or details of the crime that was allegedly committed by the petitioner in respect of the offences mentioned at Serial Nos. 5, 6 and 7 of the chart. It is submitted that the details and particulars have been furnished in the grounds of the order of the detaining authority only in respect of three crimes that are mentioned at Serial Nos. 8, 9 and 10 in the chart. It is submitted that it is no more res-integra that when the detaining authority refers to the offences mentioned in the chart of crimes incorporated in the order for recording the subjective satisfaction that the detenue is a ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 3 WP158.2017 dangerous person, it would be necessary for the detaining authority to specify the details and the particulars of the crime that are mentioned in the chart. It is submitted that if the details are not supplied in the grounds in the order of detention and if the said offences are relied on by the detaining authority for detaining a person, the impugned order is liable to be set aside, as it affects the right of the detenue to make an effective representation against the grounds in the detention order under Article 22 (5) of the Constitution of India. It is submitted that by relying on the judgment of the Hon'ble Supreme Court in the case of Khudiramdas Vs. State of West Bengal reported in (1975) 2 SCC 81, this Court has allowed Criminal Writ Petition No. 55/2017 and Criminal Writ Petition No. 1294/2013 by the judgments dated 28/04/2017 and 26/06/2017 respectively. It is submitted that since the right of the petitioner to make an effective representation is affected in the absence of furnishing the details in respect of the crimes that are considered by the detaining authority while reaching the subjective satisfaction, the impugned order of detention is liable to be set aside.
Shri Doifode, the learned Additional Public Prosecutor appearing for the respondents has supported the impugned order. It is submitted that it is apparent from Paras 6 and 8 of the order of the detaining authority that only the offences at Serial Nos. 8, 9 and 10 and the in-camera statements of two witnesses were considered by the detaining authority for holding that ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 4 WP158.2017 the petitioner is a dangerous person and his detention was necessary. It is submitted that it is apparent from a reading of Para 6 of the impugned order of detention that the petitioner had breached the condition of the bond in respect of the offences which are mentioned at Serial No. 5 in the chart. It is submitted that in Para 5 of the impugned order of detention, the detaining authority has clearly mentioned that three crimes/offences at Serial Nos. 8 to 10, as mentioned in the chart and the in-camera statements of witnesses would show that the petitioner is a dangerous person. It is submitted that the petitioner cannot effectively raise a ground that the detaining authority had relied on the offences mentioned at Serial Nos. 5, 6 and 7 while passing the order of detention. It is submitted by placing reliance on the judgment in the case of Bhushan S/o Vijay Rane Vs. State of Maharashtra reported in (2017) 4 Mh.L.J (Criminal) 75 that the court had while dismissing the petition, filed by the detenue, held that the detaining authority was satisfied that after the detenue had entered into the bond, the detenue again indulged in the activities that are prejudicial to the maintenance of public order. In the circumstances of the case, the learned Additional Public Prosecutor sought for the dismissal of the Writ Petition.
We have minutely perused the order of detention dated 08/11/2016. Para 1 of the detention order clearly states that the detaining authority was thereby communicating the grounds on which the detention ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 5 WP158.2017 order was passed, to the petitioner. In Para 2, the detaining authority has mentioned how the activities of the petitioner have become a perpetual danger to the lives and properties of the people residing in the area. Para 3 of the detention order mentions the chart which gives the list of offences and preventive action i.e taken against the petitioner. In para 4 of the detention order, the details of only three offences that are mentioned at Serial Nos. 8, 9 and 10 of the chart are supplied. In para 5 of the detention order, the detaining authority refers to the in-camera statements of the two witnesses that are not known to the petitioner. Para 6 would be relevant for considering the correctness or otherwise of the submission made on behalf of the petitioner. Para 6 of the order clearly mentions that the petitioner had breached the bond in respect of crime at Serial No. 5 in the list of offences in Para 3 and after breaching the said bond, the petitioner continued to commit serious offences such as riot, illegal possession of firearm as well as other arms, robbery, hurt, etc, in the jurisdiction of Sinhagad Road Police Station, Pune. The detaining authority observes in Para 6 of the order that the said offences are mentioned at Serial Nos. 6, 7, 8, 9 and 10 of the chart of the offences. The detaining authority did not stop at mentioning the offences that the petitioner had allegedly indulged into after the bond period was over, but had further added that it was evident from the commission of the offences at Serial Nos. 6, 7, 8, 9 and 10 of the chart of offences, that the normal laws of the land were insufficient to ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 6 WP158.2017 curtail the dangerous criminal activities of the petitioner. It is apparent from a reading of Para 6 that the detaining authority had based the order of detention on the offences mentioned at Serial Nos. 5, 6 and 7 of the chart to hold that the petitioner was involved in the commission of serious offences and the normal laws of the land were insufficient to curtail the dangerous criminal activities of the petitioner. It is necessary to note that though in Para 4 of the order of the detaining authority, the detaining authority has provided the details in regard to the offences at Serial Nos. 8, 9 and 10 in the chart in Para 3, the detaining authority, did not give any particulars in respect of the offences at Serial Nos.5, 6 and 7 in the chart. The offences registered against the petitioner at Serial Nos. 6 and 7 of the chart also appear to be serious and they are indeed held so, by the detaining authority in Para 6 of the order. It is apparent from a reading of the order of detention, that though in the grounds of detention, the offences at Serial Nos. 6 and 7 of the chart are considered by the detaining authority for passing the order of detention, the details and particulars of the said offences are not to be found in the grounds in the order of detention. It is held by the Hon'ble Supreme Court in the judgment in the case of Khudiramdas (supra), that it would be necessary for the detaining authority to communicate to the detenue the basic facts and materials which have been taken into account by the detaining authority while making the order of detention and on which, therefore the order of detention is based. By ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 7 WP158.2017 following the law laid down by the Hon'ble Supreme Court in the case of Khudiram (supra), this Court has, in the unreported judgment dated 26/06/2013 in Writ Petition No. 1294/2013 held that since the basic facts and materials in relation to the offences that were mentioned in the chart and that had influenced the subjective satisfaction of the detaining authority, had not been incorporated in the grounds served upon the petitioner, the right of the petitioner to make an effective representation against the order of detention had been violated. In the said judgment also, though the detaining authority had relied on certain offences that were mentioned in the chart, the details and particulars of those offences were not provided in the grounds of detention. A similar view was expressed in the recent unreported judgment dated 28/04/2017 in Criminal Writ Petition No. 55/2017. It is held that the communication of the grounds of detention would mean the communication of all the basic facts and materials which have been taken into account by the detaining authority while making the order of detention. In the said case, also, like the one in hand, the detaining authority had relied on the first information reports at Serial Nos. 2 to 7 in the chart but the details of the said offences were not incorporated in the grounds of detention. In the instant case, the order of the detaining authority clearly reveals that the detaining authority has considered the offences mentioned at Serial Nos. 5, 6 and 7 of the chart in Para 3 of the order of detention, but no details or particulars, whatsoever, in respect ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:25:24 ::: 8 WP158.2017 thereof are provided in the grounds of detention. In the absence of particulars, the right of the petitioner to make an effective representation was surely affected. While parting, we hold that the judgment reported in (2017) 4 Mh.L.J (Criminal) 75 and relied on by the learned Additional Public Prosecutor would not help the respondents in defending the impugned order of detention. The question, as to what would be the effect of non-furnishing of the particulars or details of the crimes/offences that are considered by the detaining authority for recording the subjective satisfaction, did not fall for consideration in the said case.
In the result, the Writ Petition is allowed. The impugned orders are quashed and set aside. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
Ansari
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