Salim Annuruddin Shaikh @ Kalya vs Mr. M.N. Singh, Commissioner Of ...
2003 Latest Caselaw 371 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Mr. Naresh Khandelwal alongwith Mr. Tripathi for the petitioner and Mr. I.S. Thakur, Add.P.P. for the State and detaining authority.

2. The petitioner was detained under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981, (hereinafter referred to as the M.P.D.A. Act) by detention order dated 15.4.2002. The grounds of detention are of the even date. The detention is challenged on number of grounds, however, Mr. Naresh Khandelwal alongwith Mr. Tripathi restricted himself to the ground No. 5(xiii) and other grounds. Since we are allowing this petition on ground No. 5(xiii), we do not think it necessary to consider other grounds. We will be considering one C.R. which is made basis of the detention order and affects public order vide C.R. No. 542 of 2001 registered at Saki Naka Police Station.

3. So far as the facts pertaining to the C.R. are concerned, they are given in the grounds of detention in para 4(a)(i). The entire incident that has taken place on 26.9.2001 and 27.9.2001 in the office premises of Joshi Group of Company, only one part of the incident is stated to have taken place at the main gate when the watchman Dinesh Shrivastava of the Joshi Group of Company tried to take search of petitioner detenue and his associates. While said Dinesh Shrivastav was taking search, the associates of the petitioner opposed and pushed him aside and started running towards auto-rikshaw which was already engaged by them. The search was to be taken for mobile phone and it is alleged that when the security guard Dinesh Shrivastav, Santosh Sawant and Santosh Singh chased the detenue and his associates, suddenly the associates of the detenue by name. Samirali and Nandkishore @ Tinku took out a revolver, pointed it towards Dinesh Shrivastav. Santosh Sawant and Santosh Singh and threatened them that if they proceeded further they would be killed. The learned A.P.P. tried to contend that even taking out the revolver in open space is sufficient to create law and order. However, we are not in agreement with him, because in the next sentence what is stated in that para is that, due to this incident Shri Dinesh Shrivastav, Santosh Sawant and Santosh Singh were terribly frightened. It is, therefore, clear that at that time nobody was there on the road and nobody was frightened or feared because of taking out the revolver. This incident has occurred on 26.9.2001.

4. So far as incident dated 27.9.2001 is concerned, which has occurred in the office of the said Joshi Group of Company and it is about the conversation on telephone and the threats given. That incident also does not affect the public order. However, this will not help the detenue in revoking the detention order because the two in-camera statements do show that the incidents stated by witnesses "A" & "B" are affecting the public order.

5. So far as ground 5(xiii) is concerned, it is the contention of the detenue as per the C.R. given above, he got the order of bail on 29.1.2002. The police could not file chargesheet within the stipulated period of 60 days. The bail order is annexed in the compilation at page 435 from which it is clear that because the chargesheet was not filed within 60 days, the detenue petitioner was allowed to be released on bail of Rs. 5000/- cash and one surety in like amount. The detenue availed of bail only on 4.3.2002 but the two in-camera statements were recorded by the police on 5.3.2002 and thus according to Mr. Tripathi, it is highly suspicious and the two in-camera statements were recorded only to detain the detenue under the provisions of M.P.D.A. Act.

6. Mr. Tripathi further contended that, in both the statements "A" & "B" what has been narrated by witnesses "A" & "B" are alleged to have taken place in the first week of October 2001 and 3rd week of September, 2001 respectively by witnesses "A" & "B". He therefore contended that, firstly the police could not submit the chargesheet within 60 days. In one matter, C.R. No. 542 of 2001 the Magistrate granted bail and since the detenue availed of the bail on 4.3.2002 immediately on the next date two in-camera statements came to be recorded and within the month thereafter the detention order came to be passed. He, therefore, contended that the in-camera statements are only for the purpose of claiming the detention order.

7. The learned A.P.P. tried to defend the detention order by contending that it could be of co-incident that detenue could avail of the bail on 4.3.2002 and in-camera statements recorded on 5.3.2002. We are not satisfied with this explanation which is given in the affidavit newly filed by the detaining authority Mr. M.N. Singh, the Commissioner of Police. Firstly, the incident that has been narrated by witnesses "A" & "B" occurred in the first of October, 2001 and 3rd week of September, 2001 and the in-camera statements are recorded on 5.3.2002 i.e. after 5 months and 6 months delay respectively. Even though it cannot be said that the detenue and his associates had created terror, the period of 5 and 6 months respectively does not appear to be justified for witnesses coming forward to give their statements. Secondly and most important aspect of recording of the statements immediately on the next day of the release of the detenue on bail appears to be highly suspicious. In Writ Petition No. 530 of 2002 decided by this Court on 10.7.2002 also a similar contention was raised. In that case the detenue came to be released on 22.2.2002 by virtue of the bail order dated 7.2.2002 and within two days thereafter i.e. on 24.2.2002 two in-camera statements of witnesses "A" & "B" were recorded for the incident occurred in October, 2001. Mr. Tripathi had appeared in that matter also and had relied upon our Court's decision in Criminal Writ Petition No. 66 of 2002 and the Court upheld the contention of Mr. Tripathi and quash the detention order.

8. The learned A.P.P. further tried to contend that the authority which has recorded the statements of witnesses "A" & "B" may not be aware that the detenue has availed the bail on 4.3.2002. Perusal of the additional affidavit filed by the detaining authority shows that C.R. No. 542 of 2001 was registered by Saki Naka Police Station and in-camera statements of witnesses A & B were recorded on 5.3.2002 were also recorded by officer of the Saki Naka Police Station. In this back ground, it cannot be allowed to be urged that the police officer of Saki Naka Police Station were not aware that the detenue had availed of bail on 4.3.2002. We therefore allow this petition.

9. Petition allowed.

10. Detention order is quashed. Petitioner be released forthwith, if not required in any other case.

11. Rule made absolute.