Bombay High Court
Deepak S/O Dattu Suryawanshi vs The Commissioner Of Police And ... on 19 December, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1237 OF 2016
Deepak s/o Dattu Suryawanshi,
Age-35 years, Residing at S. No.75,
Vikasnagar, Ghorpadi, Pune,
presently detained at Central Prison,
Aurangabad.
...PETITIONER
VERSUS
1) The Commissioner of Police,
Pune City, Dist-Pune,
2) The State of Maharashtra,
Through Addl. Chief Secretary,
Home Department (Special),
Mantralaya, Mumbai-32,
3) The Superintendent,
Aurangabad Central Prison,
Aurangabad.
...RESPONDENTS
...
Mr.U.N. Tripathi Advocate with Mr. R.D. Sanap
Advocate for Petitioner.
Mr.S.Y. Mahajan, Additional Public Prosecutor
for Respondent Nos. 1 to 3.
...
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
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DATE OF RESERVING JUDGMENT : 2ND DECEMBER,2016.
DATE OF PRONOUNCING JUDGMENT: 19TH DECEMBER, 2016.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. By way of filing present Petition, the
Petitioner challenges the detention order dated
11th July 2016 passed by Respondent No.1, bearing
No. PCB/DET/2663/2016 under Section 3(2) of the
Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-Offenders, Dangerous
Persons (And Video Pirates) Act, 1981 (for short
"M.P.D.A. Act, 1981").
3. The learned counsel appearing for the
Petitioner submits that though the number of
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grounds are taken in the Petition, he is
restricting his arguments to three grounds.
Firstly, it is submitted that though the
Petitioner is acquitted from the offence (Crime
No.63 of 2003) punishable under Section 399 of the
Indian Penal Code (for short "I.P.C.") by the
Court of Sessions Judge, Pune in Criminal Appeal
No.71 of 2004 decided on 15th February 2011, the
said Judgment and order in the aforesaid appeal
was not placed on record before the detaining
authority. The detaining authority proceeded to
pass an order of detention even relying upon the
said offence without taking into consideration a
fact that the Petitioner stands acquitted from the
said offence. In support of his submission that
inspite of acquittal of the Petitioner i.e.
detenu, in Criminal Appeal No.71 of 2004, the
order of said acquittal was not placed on record
before the detaining authority, which vitiated the
subjective satisfaction of the detaining
authority, rendering the detention order invalid,
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pressed into service exposition of law in the case
of Dharamdas Shamlal Agarwal vs. The Police
Commissioner and another, A.I.R. 1989 S.C. 1282.
4. Secondly, the learned counsel appearing
for the Petitioner submits that the detaining
authority has not recorded his satisfaction to the
effect that he has considered the in-camera
statements, more particularly their truthfulness
of the incidents which is a mandatory requirement
of law and the satisfaction being a condition
precedent to exercise power under Section 3 of
M.P.D.A. Act, 1981. Therefore, the order of
detention is illegal, bad in law and liable to
quashed and set aside. In support of the aforesaid
contentions, the learned counsel appearing for the
Petitioner placed reliance on the unreported
Judgment of the Division Bench of the Bombay High
Court at Principal Seat, in the case of Mrs.
Mrunali Virendra Lonare vs. Commissioner of Police
and others, in Criminal Writ Petition No.245 of
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2014, delivered on 18th March 2014. In support of
his submissions, the learned counsel for the
Petitioner also placed reliance on the reported
Judgment in the case of Smt. Vijaya Raju Gupta vs.
Shri R.H. Mendonca and others, 2001 ALL M.R. (Cri)
48.
5. Thirdly, the learned counsel for the
Petitioner submits that in Para 9 of the grounds
of the detention the detaining authority observed
that "the copies of documents i.e. 618 pages of
the compilation all are pertaining to 15 old cases
are placed before the detaining authority and
considered by him for arriving at his subjective
satisfaction". Thus, it is clear that the
detaining authority has considered extraneous
material apart from the material shown in para 4
and 5 of the grounds of detention and his
satisfaction was influenced. The subjective
satisfaction vitiates on the count of considering
extraneous material. In support of his
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submissions, the learned counsel appearing for the
Petitioner placed reliance on the reported
Judgment in the case of Mohd. Dhana Ali Khan vs.
State of W.B., A.I.R. 1976 S.C. 734.
6. On the other hand, the learned A.P.P.
appearing for the State, relying upon the grounds
mentioned in the order of the detaining authority
and also the original record and averments in the
affidavit in reply filed by the Commissioner of
Police, Pune City, Pune, submits that the
Petitioner is involved in number of offences since
the year 2000 as it is evident from the offences
mentioned in the grounds of detention order passed
by the detaining authority. Therefore, the learned
A.P.P. submits that the Writ Petition deserves to
be rejected.
7. We have carefully considered the
submissions advanced by the learned counsel
appearing for the Petitioner and learned A.P.P.
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appearing for the State. With their able
assistance, we have perused the grounds agitated
by the learned counsel appearing for the
Petitioner during the course of hearing and also
the submissions made by the learned A.P.P. and
also perused the Petition, annexures thereto and
the reply filed by the Commissioner of Police,
Pune City, Pune.
8. The learned counsel appearing for the
Petitioner, during the course of hearing, has
tendered across the Bar the copy of Judgment and
order passed by the Additional Sessions Judge,
Pune in Criminal Appeal No.71 of 2004 ( Mr. Deepak
Dattu Suryawanshi vs. The State of Maharashtra)
decided on 15th February 2011. Upon perusal of the
said Judgment and order, it clearly emerges that
the Petitioner stands acquitted for the offence
(Crime No.63 of 2003) punishable under Section 399
of the I.P.C. Vide the said Judgment, the order
passed by the Assistant Sessions Judge, Pune dated
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7th January 2014 in Sessions Case No.222 of 2003
convicting the present Petitioner for the offence
punishable under Section 399 of I.P.C. and
sentencing to suffer rigorous imprisonment for
three years and to pay fine of Rs.200/- each, and
in default to suffer rigorous imprisonment for one
month, has been quashed and set aside by the
Appellate Court. The said Judgment and Order is
passed on 15th February 2011 i.e. five years prior
to the passing of the order of detention.
9. Upon careful perusal of the discussion/
grounds in the detention order passed by the
detaining authority, in Ground No.3, it is stated
thus:-
" The above mentioned offences have been
registered against you from time to time for
your criminal acts but the same have had no
effect on you. In the past, on 07/01/2004, you
of IPC registered at Hadapsar Police Station.
In the said offence, the Hon'ble 15th Ad-Hoc
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Addl. District and Asstt. Sessions Judge, Pune
sentenced you to suffer R.I. for three years
and to pay fine of Rs.200/- and in default of
payment of fine, to undergo R.I. for one
month."
10. Therefore, it is abundantly clear that
the detaining authority was not made aware and
conscious of the Judgment and order passed by the
Court of Sessions Judge, Pune in Criminal Appeal
No.71 of 2004 dated 15th February 2011 acquitting
the Petitioner i.e. detenu from the offence (Crime
No.63 of 2003) punishable under Section 399 of the
I.P.C. The Supreme Court in the case of Dharamdas
Shamlal Agarwal vs. The Police Commissioner and
another, supra, while considering the contention
of the detenu therein that the acquittal of the
detenu in two of the cases shown in the table
appended to grounds, had not been brought to the
notice of detaining authority and on the other
hand they were withheld and the detaining
authority was given to understand that the trial
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of those cases was pending, has taken a view that,
the non-placing of the material fact - namely the
acquittal of detenu in the two cases resulting in
non-application of mind of the detaining authority
to the said fact vitiated the requisite subjective
satisfaction, rendering the detention order
invalid. It will be gainful to reproduce Para 12
of the said Judgment of the Supreme Court, which
reads thus:
"12. From the above decisions it emerges
that the requisite subjective satisfaction
the formation of which is a condition
precedent to passing of a detention order
will get vitiated if material or vital
facts which would have bearing on the issue
and weighed the satisfaction of the
detaining authority one way or the other
and influenced his mind are either withheld
or suppressed by the sponsoring authority
or ignored and not considered by the
detaining authority before issuing the
detention order. It is clear to our mind
that in the case on hand, at the time when
the detaining authority passed the
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detention order this vital fact, namely,
the acquittals of the detenu in case Nos.
mentioned at Serial Nos. 2 and 3 have not
been brought to his notice and on the other
hand they were withheld and the detaining
authority was given to understand that the
trial of those cases were pending. The
explanation given by the learned counsel
for the respondents, as we have already
pointed out, cannot be accepted for a
moment. The result is that the non-placing
of the material fact - namely the acquittal
of detenu in the above-said two cases
resulting in non-application of minds of
the detaining authority to the said fact
has vitiated the requisite subjective
satisfaction, rendering the impugned
detention order invalid."
11. Coming to the second ground urged by the
learned counsel for the Petitioner that the
detaining authority has not recorded his
satisfaction to the effect that he has considered
the in-camera statements, more particularly their
truthfulness of the incidents which is a mandatory
requirement of law is concerned, we have perused
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the original record made available for our perusal
and we find that the detaining authority has
relied upon the report submitted by the Assistant
Commissioner of Police and the detaining authority
himself has not verified the truthfulness of the
incidents stated by the witnesses in their in-
camera statements. The Division Bench of the
Bombay High Court at Principal Seat, in the case
of Mrs. Mrunali Virendra Lonare vs. Commissioner
of Police and others, supra, while considering
similar arguments/ grounds agitated by the detenu
therein, in Para 6 and 7 held thus:
"6. We have perused in-camera statements of
witnesses A and B. We find on careful perusal
of the grounds of detention that the detaining
authority has not at all recorded a subjective
satisfaction that the incidents narrated in the
in-camera statements were truthful. In
Paragraph 6 of the decision in the case of Smt.
Vijaya Raju Gupta (supra), the Division Bench
of this Court held thus:-
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"6. There remains no doubt in the
light of the law laid down by the
Apex Court that in camera statement
of person/witness can be utilized by
the detaining authority for the
purpose of arriving at subjective
satisfaction for passing the order of
detention. However, the Apex Court
made it clear that the facts stated
in the materials relied upon should
be true and have a reasonable nexus
with the purpose for which the order
is passed. Necessary corollary,
therefore is that the detaining
authority must be satisfied about the
truthfulness of the statements made
in the in camera statements. Testing
it from this touchstone, we find that
neither in the detention order nor in
the grounds of detention, the
detaining authority has stated
anything that he was satisfied about
the truthfulness of the statements
made in the camera statements."
(Underline added)
7. In the further part of the Paragraph 6 of
the said decision, the Division Bench held that
the detaining authority has to apply his mind
to the truthfulness of the assertions made in
the in-camera statements. In absence of a
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subjective satisfaction recorded in that
behalf, the Division Bench held that the order
of detention stood vitiated. In the present
case, admittedly no such subjective
satisfaction has been recorded by the Detaining
Authority."
12. The third ground agitated by the learned
counsel appearing for the Petitioner is that
before passing the impugned order of detention,
the detaining authority perused all the material
which was placed before him, in other grounds than
the material shown in para 4 and 5, which
according to the counsel appearing for the
Petitioner, is extraneous material, which vitiated
the subjective satisfaction of the detaining
authority. On careful perusal of the reply filed
on behalf of Respondent No.1 and in particular
Para 5 of the same, a statement made is that:-
"That the Detaining Authority perused all
the material which was placed before him
and after subjectively satisfied that
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activities of the Detenu were prejudicial
to the maintenance of public order. The
Detaining Authority further satisfied that
the Detenu is a dangerous person as
defined in section 2(b-1) of the MPDA Act.
The Detaining Authority further satisfied
that the Detenu was acting in a manner
prejudicial to the maintenance of public
order in the area of Hadapsar, Wanawadi
and Mundhawa Pune as well as within the
jurisdiction of Hadapsar, Wanawadi and
Mundhawa Police Stations."
. In Para 6 of the reply, it is further
stated that:-
"Apart from the material which are placed
before the Authority runs into total pages 1 to
618 and total number of documents are 126 and
the Detaining Authority perused all the
material and subjectively satisfied and found
that the prejudicial activities committed by
the Detenu, the detention order is must and
therefore, the Detaining Authority drafted the
said grounds and finalized and all the material
along with grounds of detention are duly
supplied to the Detenu which are relied by the
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Detaining Authority and signature of Detenu was
obtained as acknowledgement on the office
copy."
13. Therefore, it is abundantly clear that
the detaining authority not only considered the
relevant material but apart from said material/
documents, the extraneous material is also
considered by the detaining authority. The Supreme
Court in the case of Mohd. Dhana Ali Khan vs.
State of W.B., supra, while considering the
detention of detenu therein under Section 3 of the
Maintenance of Internal Security Act (26 of 1971),
in the facts of that case, held that:-
"In the circumstances, therefore, we are
satisfied that the District Magistrate before
passing the order of detention had other
materials also before him. It cannot be said
to what extent the District Magistrate was
influenced by the other materials and not by
the material which is mentioned in the ground
of detention. Thus the order of detention
suffers from a very serious infirmity which
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goes to the root of the matter. The liberty of
the subject being an extremely precious right,
where any infraction of such a right is
involved the court must act as a watch-dog and
a sentinel on the qui vive to see that every
benefit of the lacunae goes to the detenu."
. The Supreme Court in the said Judgment,
has placed reliance on the reasons of the decision
of the Supreme Court in Khudiram Das vs. State of
West Bengal, A.I.R. 1975 S.C. 550, wherein the
Supreme Court has observed thus:-
"It is therefore, not only the right of the
court, but also its duty as well, to examine
what are the basic facts and materials which
actually and in fact weighed with the detaining
authority in reaching the requisite
satisfaction. The judicial scrutiny cannot be
foreclosed by a mere statement of the detaining
authority that it has taken into account only
certain basic facts and materials and though
other basic facts and materials were before it,
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it has not allowed them to influence its
satisfaction. The Court is entitled to examine
the correctness of this statement and determine
for itself whether there were any other basic
facts of materials, apart from those admitted
by it, which could have reasonably influenced
the decision of the detaining authority and for
that purpose, the Court can certainly require
the detaining authority to produce and make
available to the Court the entire record of the
case which was before it. That is the least the
Court can do to ensure observance of the
requirements of law by the detaining
authority."
14. In the light of discussion in foregoing
paragraphs and as held by the Supreme Court in the
case of Dharamdas Shamlal Agarwal vs. The Police
Commissioner and another, supra, that once the
requisite subjective satisfaction of the detaining
authority is vitiated due to non-placing the
acquittal order of detenu before the detaining
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authority, the detention order renders invalid. In
our considered opinion, in the present case for
more than one reason including non-placing of the
order of acquittal of detenu i.e. Petitioner in
Criminal Appeal No.71 of 2004 ( Mr. Deepak Dattu
Suryawanshi vs. The State of Maharashtra) decided
on 15th February 2011, and also on other two
grounds, the requisite subjective satisfaction of
the detaining authority stands vitiated, rendering
the detention order invalid. Accordingly the
Petition must succeed and we pass the following
order:-
O R D E R
(I) The Writ Petition is allowed.
(II) Rule is made absolute in terms of
prayer clause (B), which reads thus:-
"By issuing Writ of mandamus or Writ of
habeas corpus, order or directions in the
like nature, kindly quash and set aside the
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order dated 11.07.2016 [EXH-A]; passed by
the respondent No.1, bearing No.
PCB/DET/2663/2016 under Section 3(2) of the
M.P.D.A. Act 1981. And for that purpose
issue necessary order and kindly be release
the Petitioner forthwith."
(III) The Writ Petition stands disposed of,
accordingly.
(IV) Parties to act upon authenticated
copy of this order.
[K.K. SONAWANE, J.] [S.S. SHINDE, J.]
asb/DEC16
