Bombay High Court
Lalya @ Kishor Arun Waghmare vs The Commissioner Of Police And Ors on 26 April, 2016
Bench: V.K. Tahilramani
jdk 1 13.crwp.4838.2015.j.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4838 OF 2015
Shri. Lalya @ Kishor Arun Waghmare ]
Age Adult, Occ: ]
Residing at ]
Near Bhimjyot Tarun Mandal ]
Pune ]..Petitioner
[ Detenu ]
Vs.
1. The Commissioner of Police, Pune ]
]
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
....
Mr. Udaynath Tripathi Advocate for the Petitioner
Mr. J.P.Yagnik A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
SMT. ANUJA PRABHUDESSAI, JJ.
DATED : APRIL 26, 2016
ORAL JUDGMENT [PER SMT. V.K.TAHILRAMANI, J. ]:
1. The petitioner- Lalya @ Kishor Arun Waghmare has
jdk 2 13.crwp.4838.2015.j.doc
been detained pursuant to the detention order dated 20.8.2015
passed by Respondent No.1 under Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers, Drug
Offenders, Dangerous Persons and Video Pirates Act, 1981
(Mah. Act No. LV of 1981) (Amendment-1996) (Amendment-
2009) (hereinafter referred to as "MPDA Act"). The said
detention order has been issued on the basis of three C.Rs. i.e.
CR No. 123 of 2015 which is under Section 324 read with
Section 34 of IPC, CR No. 3053 of 2015 which is under Sections
279, 427, 323, 506(II) and 504 of IPC read with Section 184 of
the Motor Vehicles Act. The third CR is CR No. 3080 of 2015
which is under Section 384 of IPC read with Sections 4 and 25
of the Arms Act, read with Section 7 of the Criminal Law
Amendment Act. In addition, the detention order is also based
on two incamera statements of witnesses "A" and "B" and the
Station Diary Entry dated 8.5.2015.
2. A perusal of paragraph 7 of the grounds of detention
shows that the detaining authority was convinced on the basis
of material placed before it that the detenu was a dangerous
person and had unleashed a reign of terror and had become a
jdk 3 13.crwp.4838.2015.j.doc
perpetual danger to the society at large in the area of Yerwada
Police Station, Pune. Further contents of paragraph 7 show
that the people residing in the said area are experiencing a
sense of insecurity and are living under a shadow of constant
fear, whereby even day to day business and activities of
citizens are under threat. Further averment made in the
grounds of detention show that the detaining authority was
subjectively satisfied that the detenu was acting in a manner
prejudicial to the maintenance of public order, hence, it was
necessary to detain him.
3. The first ground of challenge which is 6(a) is that the
detaining authority has taken into consideration two
statements of witnesses "A" and "B" recorded incamera on
25.7.2015 and 10.7.2015. These statements are relied upon
by the detaining authority for arriving at his subjective
satisfaction, however, the incamera statements were not
verified by any Senior Police Officer as per the requirement of
law, hence, it cannot be said that the incamera statements are
authentic and hence, they cannot be relied on by the detaining
authority for passing the order of detention. On account of
jdk 4 13.crwp.4838.2015.j.doc
this, the subjective satisfaction of the detaining authority is
vitiated, hence, the order of detention is illegal and bad in law
and liable to be quashed and set aside.
4. In relation to verification of statements of two
incamera witnesses, it is further stated in ground 6(f) of the
petition that "the detaining authority has referred to and relied
on two statements of witnesses "A" and "B" recorded incamera
on 25.7.2015 and 10.7.2015. It is also to be noted that there
are supplementary statements of witnesses "A" and "B"
recorded on 6.8.2015. However, these two statements are
neither verified by Assistant Commissioner of Police nor copy of
verification is furnished to the detenu along with the grounds of
detention. Non-furnishing verification notes to the detenu has
deprived the petitioner of making any effective representation
which is guaranteed under Article 22(5) of the Constitution of
India. This also amounts to non-supply of relied on documents
to the detenu. The order of detention is illegal and bad in law,
liable to be quashed and set aside".
jdk 5 13.crwp.4838.2015.j.doc
5. Ground 6(a) has been replied by the detaining
authority in paragraph 8 of his affidavit. It is stated that the
Assistant Commissioner of Police Khadki Division, Pune has
verified the incamera statements of witnesses "A" and "B" and
submitted a report to the detaining authority. The Assistant
Commissioner of Police has mentioned in the report that the
facts given in the statements of both the incamera witnesses
and apprehension entertained by both the incamera witnesses,
is true and is reasonable. The report of the Assistant
Commissioner of Police was considered by the detaining
authority and the detaining authority was subjectively satisfied
that the facts given in the statements and apprehension
entertained by the witnesses is true and reasonable. It is
further submitted in the affidavit that the detaining authority
has duly furnished all the relevant documents i.e. in all 493
pages along with the verified notes of both the incamera
statements and the same are at Page Nos. 485 to 493. As such
the detenu's right to make effective representation guaranteed
under Article 22(5) of the Constitution of India is not at all
violated. Hence, the order passed by the detaining authority is
jdk 6 13.crwp.4838.2015.j.doc
legal, just and proper and as per the provisions of law. Hence,
deserves to be confirmed.
6. As far as ground 6(f) is concerned, the detaining
authority has stated that on 6.8.2015 the Assistant
Commissioner of Police, Khadki Division, Pune has called the
witnesses "A" and "B" in her office for verification. On 6.8.2015
the Assistant Commissioner of Police, Khadki Division, Pune
verified the witnesses "A" and "B" and also verified the
truthfulness and genuineness of the statements given by them
before the Senior Police Inspector of Yerawada Police Station
on 25.7.2015 and 10.7.2015 respectively. Then regarding this
verification of truthfulness, the Assistant Commissioner of
Police, Khadki Division, Pune has recorded the supplementary
statements of witnesses "A" and "B" on 6.8.2015. As such
these supplementary statements of witnesses "A" and "B"
recorded on 6.8.2015 by the Assistant Commissioner of Police,
Khadki Division, Pune is nothing but verification of truthfulness
and genuineness of the statements of the witnesses "A" and
"B". These supplementary statements regarding verification of
the statements of witnesses "A" and "B" are placed at Page
jdk 7 13.crwp.4838.2015.j.doc
Nos. 489 and 493 of the copies served to the detenu.
Moreover, the Assistant Commissioner of Police, Khadki
Division, Pune has submitted report dated 6.8.2015 regarding
the verification of the truthfulness and genuineness of the
statements of the witnesses "A" and "B" to the Respondent /
detaining authority. This report is placed at page no. 485 of
the copy served to the detenu. In the said report, the Assistant
Commissioner of Police, Khadki Division, Pune has mentioned
that the facts given
ig in the incamera statements and
apprehension entertained by the witnesses "A" and "B" therein
are true and reasonable. After perusing the said report, the
detaining authority was subjectively satisfied that the facts
given in the incamera statements and apprehension
entertained by the witnesses "A" and "B" are true and
reasonable. Also there is no particular format of verification.
As such the order passed by the detaining authority is legal,
just and proper.
7. Mr. Tripathi submitted that Article 22(5) of the
Constitution of India guarantees the detenu a right to make an
effective representation. A right to make representation
jdk 8 13.crwp.4838.2015.j.doc
means making an effective representation. For a
representation to be effective, the petitioner / detenu must be
supplied and furnished not only the grounds of detention, but
all the documents that are relied upon in support of the
conclusion reached by the detaining authority. Mr. Tripathi
submitted that in the present case, reliance is placed on the
two incamera statements but the incamera statements are not
verified by a Senior Police Officer and if verified, copies of the
verification have not been furnished to the detenu. In such
circumstances, the right to make an effective representation
guaranteed to the petitioner under Article 22(5) of the
Constitution of India, is violated.
8. Mr. Tripathi has placed reliance on number of
judgments to contend that if incamera statements are not
verified by the Senior Police Officer or if verified, the
verification is not furnished to the detenu, the detention order
would be vitiated. The said decisions as under:
(1) 2015 ALL MR (Cri.) 4437; Jay @ Nunya Bhosale Vs. C.P. Pune;
(2) In Cri.W.P.No. 395 of 2015 Rohidas @ Pintya Laxman Gupte
jdk 9 13.crwp.4838.2015.j.doc
Vs. The Commissioner of Police Pune, dated 17.4.2015
(Coram: B.R. Gavai and A.S. Gadkari,JJ.);
(3) 2001 ALL MR (Cri.) 68; Subhangi Tukaram Sawant Vs. R.H.
Mendoca and others;
(4) 2004 ALL MR (Cri.) 1974; Vijay Ramchandra Angre Vs. S.M.
Shangari and Ors.;
(5) 2005(4) Mh.L.J. 996; Charanjit Singh @ Sonu Vs. State of
Maharashtra;
In Cri.W.P.No. 2174 of 2012; Swapnil Tahsildar Vs. D.M.
(Coram: A.S. Oka and Smt. Sadhana S. Jadhav, JJ.);
(7) 2014 ALL MR (Cri.) 2409; Mohsin Ahmed Vs. State;
(8) 2013 ALL MR (Cri.) 3349; Mohd. Sahjad Khan Vs. State of
Maharashtra;
(9) 2006 ALL MR (Cri.) 3324; Mrs. Zabin Salim Hamza Shaikh Vs.
A.N. Roy and Ors.;
(10) 1995 Cri.L.J. 231; Kailash Laxman Joshi Vs. B. Akashi and
Ors.;
(11) 2000(6) SCC 751; Smt. Phulwari J. Pathak Vs. R.H. Mendoca
and Ors;
(12) 2001 ALL MR (Cri.) 48; Vijay Raju Gupta Vs. R.H. Mendoca
and Ors;
jdk 10 13.crwp.4838.2015.j.doc
(13) 2008 ALL MR (Cri.) 680; Mohd. Kamil Noor Mohd. Ansari Vs.
D.N. Jadhav.
9. Mr. Yagnik, the learned A.P.P. on the other hand,
submitted that the statements of both incamera witnesses
have been verified and copies of the verification have been
furnished to the detenu. In support thereof, he not only relied
on the affidavits filed by the detaining authority but also on the
compilation of documents which has been admittedly furnished
to the detenu. We find in the compilation of documents served
on the detenu two documents which are at page nos. 489 and
493 of the compilation served on the detenu. The gist in
English of the contents of page no. 489 which is in Marathi, is
as under:
"Witness - A [Page No. 489]
Further Statement Dated 06/08/2015
I:-_________________________________________
am present and give statement that I stay at the
address mentioned above along with my father and
brother and I work at Pune.
On being called in the office of the Assistant
jdk 11 13.crwp.4838.2015.j.doc
Police Commissioner, Khadki Division, Pune City, the
statement which was given by me on 25.7.2015
before Senior Police Inspector, Yerawada Police
Station, Pune, was read over to me which was the
statement given by me and it bears my signature.
The contents in the said statement are true and
correct. Since the said person Lalya alias Kishor
Waghmare has unleashed a reign terror in Yerawada
area, therefore, I should not be called to give
evidence anywhere.
The said statement is seen by me which is
recorded correctly as per my say.
This statement is given accordingly.
Before me Before me
Sd/- in English Sd/- in English
(Swapna H. Gore)
Asstt. Police Commissioner,
Khadki Division, Pune City.
Certified to be true
copy as per original
ROUND SEAL Sd/-
POLICE INSPECTOR Police Inspector
YERAWADA P.ST. PUNE Yerawada P.St. Pune
Received copy Copy given which is
which I understood explained in Marathi
[Thumb impression] Sd/-
Sr. Police Inspector
Yerawada P.St. Pune."
jdk 12 13.crwp.4838.2015.j.doc
The gist in English of the contents of page no. 493
which is in Marathi, is as under:
"Witness - B [Page No. 493]
Further Statement Dated 06/08/2015
I:-_________________________________________
am present and give statement that I stay at the
address mentioned above along with my two sons.
On being called in the office of the Assistant
Police Commissioner, Khadki Division, Pune City, the
statement which was given by me on 10.7.2015
before Senior Police Inspector, Yerawada Police
Station, Pune, was read over to me which was the
statement given by me and it bears my signature.
The contents in the said statement are true and
correct. Since the said person Lalya alias Kishor
Waghmare has unleashed a reign of terror in
Yerawada area, therefore, nobody dare to come
forward to give evidence. I should also not be called
to give evidence in this respect.
The said statement is read by me which is
recorded correctly as per my say.
This statement is given accordingly which is
signed in Marathi.
Before me
Sd/- in English
(Swapna H. Gore)
Asstt. Police Commissioner,
Khadki Division, Pune City.
jdk 13 13.crwp.4838.2015.j.doc
Certified to be true
copy as per original
ROUND SEAL Sd/-
POLICE INSPECTOR Police Inspector
YERAWADA P.ST. PUNE Yerawada P.St. Pune
Received copy Copy given which is
which I understood explained in Marathi
[Thumb impression] Sd/-
Sr. Police Inspector
Yerawada P.St. Pune."
10. Mr. Tripathi submitted that these are the further
statements of incamera witnesses and it cannot be held to be
a verification in accordance with law. However, on reading
these two documents, it becomes clear that the Assistant
Commissioner of Police had verified from the two incamera
witnesses that the incamera statements were true and
genuine. These two documents show that the Assistant
Commissioner of Police verified the statements from the
incamera witnesses and copies of these documents have been
furnished to the detenu.
11. From the documents at page nos. 489 and 493, it is
seen that though these statements are termed as further
statements, they are actually verification of the incamera
jdk 14 13.crwp.4838.2015.j.doc
statements of Witness "A" and "B". Copies of these documents
were placed before the detaining authority as well as copies
thereof were admittedly furnished to the detenu.
Nomenclature of the document is not important or material.
What is material is the contents of the document. The contents
of the documents at page nos. 489 and 493 clearly show that
both the incamera statements were verified by the Assistant
Commissioner of Police who is a Senior Police Official. Thus,
we find no substance in the contention raised by Mr. Tripathi.
12. In addition to the documents at page nos. 489 and
493, we find that document at page no.485 was placed before
the detaining authority and copy thereof was admittedly
furnished to the detenu. This document is a report by the
Assistant Commissioner of Police to the detaining authority. In
the said report, it is stated as under:
"O.W.No. 5402/Conf./2015
Asstt. Commissioner of Police
Khadki Division, Pune City
Dated 6.8.2015.
To,
The Commissioner of Police,
Pune City.
jdk 15 13.crwp.4838.2015.j.doc
Sub: In respect of verification of
of incamera witnesses.
On the subject, it is submitted that I after
calling persons (1) ________________ and
(2)_________________ and after making enquiry and
verifying from them, they have stated before me that
the contents in the statements given by them, are
correct.
In my enquiry, it is revealed that they have
given the correct information in respect of the
harassment meted out to them and the fear
expressed by them against the detenu by name Lalya
alias Kishor Arun Waghmare Age 30 years, residing at
Sy.No. 12, Near Bhimjyot Tarun Mandal, Laxminagar,
Yerawada, Pune.
SEAL True copy as Sd/-
P.I. Yerawada per Original (Swapna H. Gore)
Central Prison Sd/- Asstt. Police Comm.
Police Inspector Khadki Divn.
Yerawada P.St. Pune.
Copy given and read and
explained in Marathi.
Sd/-
Senior Inspector of Police,
Yerawada Police St. Pune City"
Thus, this document also clearly shows that the two
incamera statements were verified by the Assistant
Commissioner of Police. Copy of this document has been
furnished to the detenu. In the present case, in view of the
further statements of witnesses A and B dated 6.8.2015 and
jdk 16 13.crwp.4838.2015.j.doc
report of the A.C.P. to detaining authority dated 6.8.2015, we
are of the opinion that there is no need at all for the A.C.P. to
record his satisfaction on this aspect separately. The further
statements of witnesses A & B itself are sufficient to show that
the A.C.P. had verified the incamera statements. The report of
the A.C.P. to the detaining authority dated 6.8.2015 by itself is
also sufficient to show that the A.C.P. had verified the incamera
statements. Any one of these documents is sufficient to show
that incamera statements were verified by the A.C.P. Both
the report of the A.C.P. and supplementary statements are not
necessary and any one of them would have been sufficient.
These documents clearly prove that a Senior Police Officer i.e.
A.C.P. had verified the genuineness of the incamera statements
and copies of these documents, as stated earlier, have been
furnished to the detenu.
13. None of the judgments cited above lay down any
principle that there should be a particular format in which the
verification must be done. The verification no doubt ought to
be there. The incamera statements and the witnesses making
them ought to be questioned about them and the genuineness
jdk 17 13.crwp.4838.2015.j.doc
of the incamera statements ascertained. Thus, there should be
a verification of the incamera statements, but it need not be in
particular format or answered in any particular description or
employing any particular words and expressions. Similarly
none of these decisions say that the verification ought to be
appearing on the face of the incamera statements or on the
copy of the same supplied to the detenu. If there is an
incamera statement recorded and there is a verification done,
the verification can well be contained in a separate report. So
long as the copies of the incamera statements and that report
are forwarded to the detaining authority, if that forms part of
the material and documents taken into consideration by the
detaining authority and furnished to the detenu, then the
detention order is not vitiated nor the right to make an
effective representation guaranteed under Article 22(5) of the
Constitution of India is affected. From the record of the
present case, we have found that there is indeed a verification
of the statements recorded incamera and copy of document
showing that the incamera statements were verified by a
Senior Police Official is furnished to the detenu. Thus, there is
no merit in these two grounds.
jdk 18 13.crwp.4838.2015.j.doc
14. The next ground raised by Mr. Tripathi is that the
subjective satisfaction of the detaining authority is based on
three CRs., one Station Diary entry and statements of two
incamera witnesses. He further pointed out that out of the 3
C.Rs., CR No. 123 of 2015 and CR No. 3053 of 2015 do not
affect the public order. On going through the details relating to
these two CRs. we entirely agree with Mr. Tripathi that both
these cases do not affect the maintenance of public order.
15. Thereafter Mr. Tripathi submitted that if the
statements of two incamera witnesses are excluded from
consideration because verification of the same was not
furnished to the detenu, that would mean that the detention
order is based only on one CR i.e. CR No. 3080 of 2015 which is
under Section 384 of IPC and one Station Diary Entry. Mr.
Tripathi submitted that the incidents relating to CR No. 123 of
2015 and CR No. 3053 of 2015 did not affect the maintenance
of public order, hence, only CR No. 3080 of 2015 remains and
one station Diary Entry. He further submitted that the Station
Diary Entry cannot be taken into consideration, hence, that
jdk 19 13.crwp.4838.2015.j.doc
would mean that the detention order is based only on one CR
i.e. CR No. 3080 of 2015. Mr. Tripathi submitted that the
detenu has been detained as he is a dangerous person and
definition of a dangerous person is to be found in Section
2(b-1) of the MPDA Act, which reads as under:
"2.[b-1) "dangerous person" means a person, who
either by himself or as a member or leader of a gang,
"habitually commits", or attempts to commit or
abets the commission of any of the offences
punishable under Chapter XVI or Chapter XVII of the
Indian Penal Code or any of the offences punishable
under Chapter V of the Arms Act, 1959 (LIV of
1959);]".
Mr. Tripathi submitted that based on only one CR i.e.
CR No. 3080 of 2015, it cannot be said that the detenu is a
dangerous person, because, it is stated that dangerous person
is a person who habitually commits offences under Chapter XVI
or XVII of IPC or under Chapter V of the Arms Act hence, for a
person to be considered dangerous, the person has to be
involved in two or more incidents which affect public order.
jdk 20 13.crwp.4838.2015.j.doc
16. We agree with the submission of Mr. Tripathi that the
incidents relating to CR No. 123 of 2015 and CR No. 3053 of
2015 were not such as to affect the maintenance of public
order, however, for reasons recorded below, we do not agree
with the latter part of his submission that the detention order is
based only on CR No. 3080 of 2015.
17. As far as the above contention is concerned, we have
already observed above that statements of two incamera
witnesses have been verified by a Senior Police Officer i.e.
Assistant Commissioner of Police and copy of the documents
showing that such verification was done has been furnished to
the detenu. Incamera statement of witness "A" shows that
people were running helter skelter and shop keepers were
closing their shops. At that time, the shop keeper of the shop
in which witness A was, also told him to leave the shop and
hurriedly pushed down the shutter of the shop. When witness
"A" came on the road, the detenu arrived there armed with a
sword. He assaulted witness "A" and snatched Rs.3300/- from
the shirt pocket of witness "A", detenu then pointed out a
sword at witness "A" and threatened him that if he made
jdk 21 13.crwp.4838.2015.j.doc
complaint to the police, he would kill him. Incamera witness
"B" has stated that the detenu threatens and collects money
from vegetable vendors, businessmen and residents and the
detenu has created a reign of terror in the area and nobody
dared to complain against the detenu. Incamera witness "B"
has further stated that on the date of the incident, the detenu
was threatening shop keepers and handcart owners with a
sword, due to which, handcart owners and vegetable vendors
ran away.
The detenu then overturned handcart of witness
"B" loaded with potatoes which led to a loss to witness "B".
Thus, it is seen that the incidents relating to both witnesses "A"
and "B" are such that they affect the maintenance of public
order. In addition to statements of two incamera witnesses,
the details relating to CR No. 3080 of 2015 are also such that
the activities of the detenu were prejudicial to the maintenance
of public order. In this case, the complainant approached the
police in terrified condition and told them that the detenu was
threatening shop keepers and handcart owners with a sword
and that the detenu had overturned handcarts and had created
chaos. Due to fear, people present there, ran helter skelter.
On getting this information, the police officers and staff rushed
jdk 22 13.crwp.4838.2015.j.doc
to the spot where they saw the detenu holding sword and
threatening shop keepers and handcart owners. The detenu
had created a reign of terror and people present there were
terrified. Handcart owners and vegetable vendors who were
present at the spot, ran helter skelter. Investigation in the
said case revealed that every month the detenu extorted
money from vegetable vendors, grocery shop keepers and tea
handcart owners. Thus, the incident relating to CR No. 3080 of
2015 is also such which affects the maintenance of public
order.
18. It is seen that incidents relating to CR No. 3080 of
2015 and incamera witness "A" and witness "B" are of
extortion of money in public places. Such acts are bound to
affect public order. In this connection, reliance can be placed
on a decision of the Supreme Court in the case of Hasan Khan
Ibne Haider Khan Vs. R.H. Mendonca & Ors. reported in AIR
2000 SC 1146. In the said case, it was argued that the
activities of the detenu were such that they did not disturb the
public order. The Supreme Court in paragraph 9 of the said
decision observed thus:-
jdk 23 13.crwp.4838.2015.j.doc
"We find that the appellant extorted money from
businessmen and also gave threats to the people at
the public place and thereby undoubtedly affected
the even tempo of life of the society, therefore, such
activities cannot be said to be mere disturbance of
law and order. "
19. Coming to the station Diary Entry, it is seen that in
addition to the two incamera statements and CR No. 3080 of
2015, the detaining authority is relying on Station Diary Entry
No. 23 of 2015 dated 8.5.2015. The facts relating to this
Station Diary Entry are that on 8.5.2015 at 12.30 p.m. a
wireless message was received from police control room that
one person is threatening and terrorizing people with a sword.
Police reached the spot. They noticed that grocery shops in
the area were closed. On enquiry with the shop owners by
police head constable Sable, he was told that the detenu had
threatened and was terrorizing the shop keepers with a sword
and ordered them to close their shops and went away.
Constable Sable told the residents and shop keepers to file a
complaint against the detenu. But due to fear, nobody came
forward to file a complaint against the detenu. Hence, at 2.00
p.m. Station Diary Entry was recorded in relation to this
jdk 24 13.crwp.4838.2015.j.doc
incident vide No. 23 of 2015.
20. Mr. Tripathi stated that this Station Diary Entry could
not have been relied upon by the detaining authority. We do
not find any substance in this submission. The detaining
authority is not bound by strict rules of evidence. It is not
necessary that the detaining authority can only rely on C.Rs.
which are registered or statements of witnesses which have
been recorded incamera.
ig It is open to the detaining authority
to rely on any other material which shows that the detenu has
indulged in activities which are prejudicial to the maintenance
of public order. The Station Diary Entry clearly shows that the
detenu was indulging in activities prejudicial to the
maintenance of public order. Thus, the detaining authority has
rightly relied on the Station Diary Entry. The Supreme Court in
the case of State of Bombay Vs. Atma Ram Shridhar Vaidya;
A.I.R. 1951 SC 157 held that the detaining authority is not
bound by strict rules of evidence. The Supreme Court held that
"Such detention orders are passed on information and
materials which may not be strictly admissible as evidence
under the Evidence Act in a Court, but which the law, taking
jdk 25 13.crwp.4838.2015.j.doc
into consideration the needs and exigencies of administration,
has allowed to be considered sufficient for the subjective
decision of the Government". The word `Government' is used
as in the case of Atma Ram the detaining authority was the
Government. It is to be noted that the decision of the Supreme
Court in the case of Atma Ram is a decision of the Constitution
Bench of the Supreme Court. Similar view was taken by this
Court in the case of Anthony @ Sandy John Nigero Vs. S.
Ramamurti, Commissioner of Police for Greater Bombay and
others; 1993 Cri.L.J. 3259. In this case, it was held that "It is
well settled that neither is the detenu an accused nor are
detention proceedings his trial. Detention is based not on facts
proved as per Evidence Act or Cr.P.C. but on the subjective
satisfaction of the detaining authority that detention is
necessary for prevention of prejudicial activities in future.
Therefore, rules and principles of criminal jurisprudence in
general will not apply to preventive detention. Some element
of suspicion, anticipation and speculation is inherent in the
preventive detention. The detention proceedings are neither
criminal nor quasi-criminal, nor judicial nor quasi-judicial in
character. Detention order, more or less, is administrative in
jdk 26 13.crwp.4838.2015.j.doc
nature and the detaining authority is not bound by strict rules
of Evidence Act or Cr.P.C. It may be mentioned that even "in
camera" statements can be relied upon for reaching the
subjective satisfaction".
21. Thus, it is seen that even if C.R. No.123 of 2015 and
CR No. 3053 of 2015 are excluded from consideration as the
incidents relating to these C.Rs. do not affect the maintenance
of public order, applying provisions of Section 5A of the MPDA
Act, these two C.Rs. can be severed and excluded from
consideration. The detention order in the present case is
based on six incidents i.e. CR No. 123 of 2015, CR No. 3053 of
2015, CR No.3080 of 2015, Station Diary Entry No. 23 of 2015
and statements of two incamera witnesses "A" and "B". Thus,
the detention order is issued on the basis of six grounds. If two
grounds i.e. relating to CR No. 123 of 2015 and CR No. 3053 of
2015 are excluded from consideration after applying Section
5A, that would leave us with CR No. 3080 of 2015, Station Diary
Entry and statements of two incamera witnesses "A" and "B".
For a person to fall in the category of "dangerous person" two
or more incidents are enough. In the present case, after
jdk 27 13.crwp.4838.2015.j.doc
excluding CR Nos. 123 of 2015 and 3053 of 2015, we have four
incidents or grounds on which the detaining authority has
placed reliance to issue the order of detention. From these
four incidents, it can certainly be said that the detenu is a
dangerous person. On consideration of these four incidents, we
hold that the same are germane to arrive at the subjective
satisfaction of the detaining authority that even tempo of life of
people was disturbed and these incidents resulted in breach of
public order and affected the maintenance of public order.
22. In view of the above, in our opinion, this ground
raised by the learned counsel for the petitioner to espouse the
case of the detenu, is also of no avail. Thus, this petition is
devoid of substance. Hence, Rule is discharged.
[ SMT. ANUJA PRABHUDESSAI, J.] [ SMT. V.K.TAHILRAMANI, J. ]
kandarkar
