905-WP-3168-17-Jt..doc
Sharayu
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3168 OF 2017
Nazeem Ahmed Abdulrahim Salar ...Petitioner
Versus
1. The Commissioner of Police Solapur
2. The State of Maharashtra
(Through Addl. Chief Secretary
to Government of Maharashtra
Home Department, Mantralaya,
Mumbai)
3. The Superintendent
Yerwada Central Prison
Pune. ...Respondents
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Mr. Udaynath Tripathi, for the Petitioner.
Ms. V.S. Mhaispurkar, APP, for the Respondent-State.
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CORAM : ABHAY S. OKA & AND
RIYAZ I. CHAGLA, JJ.
DATE : 29 September 2017 1/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:12 ::: 905-WP-3168-17-Jt..doc ORAL JUDGMENT : [Per Riyaz I. Chagla J.]
1. The Petitioner by the present Petition challenged an order of preventive detention dated 2 May 2017 passed against him under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Person Video Pirates, Sand Smugglers and persons engaged in Black- marketing of Essential Commodities Act, 1981 (for short "the said Act").
2. The learned Counsel appearing for the Petitioner has drawn our attention to the ground (c) of the Petition, which reads thus:-
"The Petitioner says and submits that the detaining authority has referred to and relied on two in-camera statements of Witnesses 'A' and 'B' recorded on 18.04.2017 and 19.04.2017 respectively, it is important to note that both the statements are 2/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:12 ::: 905-WP-3168-17-Jt..doc recorded by Sr.Inspector of Police, Sadar Bazar Police Station, Solapure and shown to have been verified by Assistant Commissioner of Police, Division-1, Solapur whereas no dates ought to have verification are disclosed on the said statements below the signature of Verifying Officer. The so-called verification is not proper and authentic and which also amounts to non- verification of statements. The verifications are vague and invalid for non-mentioning the dates of verification. Such statements cannot be considered for detention of the detenu. This shows total non- application of mind of the Verifying Officer as well as the detaining authority. The order of detention is illegal and bad in law, liable to be quashed and set aside."
3. He has submitted that the Detaining Authority had relied on two in-camera statements of witnesses 'A' and 'B' recorded on 18 April 2017 and 19 April 2017. Both the 3/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 ::: 905-WP-3168-17-Jt..doc statements are recorded by the Senior Inspector of Police, Sadar Bazar Police Station, Solapur verified by the Assistant Commissioner of Police, Division-1, Solapur. However, no dates have been mentioned as to when the verification disclosed in the statements below the signature of the Verifying Authority took place. He has therefore submitted that the verification is not proper and/or authentic and amounts to non verification of the statements. He has also contended that the incidents mentioned in the in-camera statements of the two witnesses are of March 2017 and April 2017. He has submitted that thereafter, on 2 May 2017, the Hon'ble J.M.F.C. Court No. 9 at Solapur handed over the Detenu to custody of the M.I.D.C. Police Station. He has submitted that the Detenu was in judicial custody on the date of his detention on 2 May 2017. The Detaining Authority has not recorded his satisfaction viz. that there is a "real and eminent" possibility of the release of the Detenu on bail shortly supported by any cogent material, which is one of the essential guidelines laid down in the judgment in the case of Kamarunissa Vs. Union of India & Anr.1. He has 1 (1991)1 SCC 128 4/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 ::: 905-WP-3168-17-Jt..doc therefore, submitted that on these two main grounds, the order of detention be quashed and set aside.
4. The learned AGP has supported the order of detention which according to her is well supported by the grounds of detention. The learned AGP has invited our attention to paragraph 7 of the grounds of detention, wherein after recording the subjective satisfaction, the Detaining Authority has considered the fact that the associates of the Detenu has already been released on bail and after taking this into consideration stated that there is possibility of the Detenu be granted bail.
5. We have carefully considered the submissions. We have perused the in-camera statements, copies of which have been supplied to the Petitioner. The two in-camera statements relating to the incidents in March and April 2017 have been recorded on 18 and 19 April 2017 respectively. The order of detention has been passed on 2 May 2017. In the copies of the in-camera statements supplied to the Petitioner, the verification 5/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 ::: 905-WP-3168-17-Jt..doc recorded below the in-camera statements are not bearing the date of verification and have been kept blank. Even in the grounds of detention, the dates on when the verification was effected have not been mentioned. We have noticed that insofar as one of the incidents of which the witness statements pertain the gap is nearly two months from the date of passing the order of detention. We are of the view that the dates on which the in- camera statements were verified are very material and relevant in the facts of the case. The omission to mention the dates infringe the constitutional right available to the Petitioner for making an effective representation against the order of detention. The failure to mention the dates in the grounds of detention infringes the rights of the Petitioner of making an effective representation against the order of detention.
6. We have noticed that in the grounds of detention at paragraph 7, the Detaining Authority has recorded subjective satisfaction after going through, inter alia, the witness statements and has stated that the Detenu was acting in a 6/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 ::: 905-WP-3168-17-Jt..doc manner prejudicial to the public order. In the said paragraph, it is mentioned that the Detenue is still under Magisterial custody in connection with the C.R.No. 543/2016, the said paragraph reads thus:-
"All of your associates in Crs., as mentioned in above Para No. 5-1 and 5-2 were already released on bail.
Like this taking into consideration the provision mentioned under Section 439 of Cr.P.C., in future there is possibility of your bail, in future if you gets bail, you will become a free person and taking into consideration your propensity towards criminality as shown in above, there is a possibility that you will likely to revert to the similar activities prejudicial to the maintenance of public order in future."
7. Having considered these statements of the Detaining Authority in the said paragraph, we are of the view that 7/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 ::: 905-WP-3168-17-Jt..doc although the Detaining Authority has only mentioned that in the future there is possibility of the Detenu gets bail and not having mentioned the eminent and real possibility of his release on bail in line with the judgment of the Apex Court in Kamarunissa (supra), the Detaining Authority has mentioned this only after considering that all the associates of the Detenu had already been released on bail. The Detaining Authority has therefore, considered this relevant fact and having so considered mentioned that there was a possibility of the Detenu being released on bail. We do not consider the said statement of the Detaining Authority being fatal to the order of Detenu.
8. However, we are of the view that the omission to mention the date of verification of in-camera statements furnished to the Petitioner and in the grounds of detention, the order of detention stands vitiated. We have also noticed that in the Affidavit of the Detaining Authority dated 22 September 2017, the Detaining Authority at paragraph 12 has admitted that the statements which are verified by Shri. H.V. Parande, the 8/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 ::: 905-WP-3168-17-Jt..doc Assistant Commissioner of Police, Division 1, Solapur on 20 April 2017 had not mentioned the date below his signature. The Detaining Authority has stated that after perusing the verifications at bottom of in-camera statements and satisfying himself about the truthfulness of the incident and apprehension expressed by the witness and that the statements were true and genuine had been subjectively satisfied that the Detenu was disturbing the maintenance of public order and issued a detention order. We are of the view that the omission to mention the dates of verification on the copies of the witness statements furnished to the Petitioner has resulted in an infringement of the right of the Petitioner in making an effective representation against the order of detention. Hence, the Writ Petition must succeed on this ground alone and we pass the following order.
(i) Rule is made absolute, in terms of prayer clause
(b), which reads thus:-
9/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 :::
905-WP-3168-17-Jt..doc "That the order of detention bearing No. 07/CBBL-DP/17 dated 02.05.2017 under Section 3 of M.P.D.A. Act 1981 by the Respondent No. 1 against the detenu, be quashed and set aside and on quashing the said order of detention, the detenu be released forthwith."
(ii) All concerned to act upon an authenticated copy of the operative part of the Judgment and Order.
(iii) There shall be no order as to costs.
[RIYAZ I. CHAGLA J.] [ABHAY S. OKA, J.] 10/10 ::: Uploaded on - 13/10/2017 ::: Downloaded on - 13/10/2017 23:27:13 :::