Bombay High Court
Santosh Kashinath Kamble vs The State Of Maharashtra And Ors on 4 March, 2016
Bench: S.C. Dharmadhikari
WP4510.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4510 OF 2015
Santosh Kashinath Kamble ]
is the brother of detenu at the instance ]
of Mr. Dipak @ D. Baba Kashinath ]
Kamble, Detenue, aged about 37 years, ]
Occ. Business, Residing at Vithal Nagar ]
Nehru Nagar, Pimpri, Pune-411018. ] ... Petitioner
Versus
1. State of Maharashtra ]
(Through the Secretary to the Govt.
ig ]
of Maharashtra, (Preventive ]
Detention), Home Department (Spl) ]
Mantralaya, Mumbai - 400 032. ]
2. The Government of Police, ]
Pune City, Pune. ]
3. The Superintendent of Jail, ]
Yerwada Central Prison, Pune. ] ... Respondents
Mr. Udaynath Tripathi for the Petitioner.
Mr. J.P. Yagnik, APP, for the Respondents.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
THURSDAY, 03RD MARCH, 2016 /
FRIDAY, 04TH MARCH, 2016.
ORAL JUDGMNENT : [Per S.C. Dharmadhikari, J.]
1. By this petition under Article 226 of the Constitution of
India, the petitioner challenges the order of detention dated 7 th
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August, 2015, issued by the Commissioner of Police, Pune City,
under Section 3(2) of the Maharashtra Prevention of Dangerous
Activities of Slum Lords, Bootleggers, Drug-Offenders, Dangerous
Persons and Video Pirates Act, 1981 (for short "MPDA Act").
2. The petition proceeds to state that the petitioner is the
brother of the detenu. Detenu is one Dipak alias D. Baba
Kashinath Kamble. The petitioner states that the detention order
is vitiated on two counts. The first pertains to the legality and
validity of the detention order. It is submitted that the detention
order is founded on two C.Rs and two in camera statements. In
regard to this, it is submitted by Mr. V.N. Tripathi, learned
advocate appearing for the petitioner that these two in camera
statements have not been verified. If there is no verification of
the in camera statements, then, the same cannot form part of the
subjective satisfaction simply because the detaining authority
has no material to confirm the incidents that are narrated by
such witnesses. The truthfulness can be gathered provided there
is a verification of these statements and that statement certifies
that the incidents, as narrated, have indeed taken place. In the
present case, no such satisfaction has been recorded inasmuch as
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the two in camera statements, copies of which have been
supplied, have not been verified. If they are omitted from
consideration, then, what remains as the basis of the subjective
satisfaction are the two CRs. In relation to those, Mr. Tripathi
would submit that one CR No.3098 of 2015 refers to section
37(1) read with 135 of the Maharashtra Police Act, 1951, and
section 7(25) of the Arms Act. The details of the incident
resulting in recording of the same are narrated in paragraph 4.1
in the grounds of detention. The argument is that on a plain
reading of the F.I.R., it will not be held by any man of prudence
that by mere possession of one sharp koyta, the public order is
disturbed. Thus, mere possession of any arms without any use
and and overt act cannot be the basis for a subjective satisfaction
that public order is disturbed. If public order is not disturbed,
provisions of MPDA Act are not attracted. The petitioner then
submits that if the CR No.3098 of 2015 is thus excluded then
remains only one CR being CR No.392 of 2015. That single or
solitary CR and the incident referred therein would not lead to
the conclusion that the petitioner is a dangerous person within
the meaning of section 2(b-1) of the MPDA. Mr. Tripathi would
submit that a single solitary incident of the nature referred to will
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not enable the detaining authority to conclude that a person
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 and XVII of the
Indian Penal Code, 1860 or any of the offences punishable under
Chapter V of the Arms Act, 1959.
3. Mr. Tripathi would submit that Article 22(5) of the
Constitution of India guarantees the detenu a right to make an
effective representation. A right to make representation 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
referred to and relied upon in support of the conclusion as above.
In the present case, there is a reference and reliance on the two in
camera statements. Copies of the in camera statements as
verified have not been furnished to the detenu. Such statements,
without verification, are not authentic and cannot be relied upon.
This could have been pointed out provided they were furnished.
In such circumstances, the right to make an effective
representation guaranteed to the petitioner under Article 22(5)
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of the Constitution of India is violated.
4. Mr. Tripathi has placed reliance upon number of judgments
and forming part of two compilations. They are as under :
(1) Jay @ Nunya Rajesh Bhosale vs. The Commissioner of
Police, Pune & Ors., 2015 ALL MR (Cri) 4437.
(2) Rohidas @ Pintya Laxman Gupta vs. The Commissioner of
Police, Pune, Order dated 17th April, 2015, passed in Criminal
Writ Petition No. 395 OF 2015.
(3) Phulwari Jagdambaprasad Pathak vs. R.H. Mendonca &
Ors., (2000) 6 SCC (Cri) 751.
(4) Vijay Raju Gupta vs. R.H. Mendonca & Ors., 2001 ALL MR
(Cri) 48.
(5) Swapnil Sanjay Tahsildar vs. The District Magistrate &
Ors., Order dated 17th October, 2012 in Cri. W.P. No. 2174 of
2012.
(6) Shri Vijay Ramchandra Angre vs. Shri S.M. Shangari & Ors.
2004 ALL MR (Cri) 1974.
(7) Smt. Subhangi Tukaram Sawant vs. Shri R.H. Mendonca &
Ors. 2001 ALL MR (Cri) 68.
(8) Vijay Narain Singh vs. State of Bihar & Ors., (1984) 3 SCC
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14.
(9) Mustakmiya Jabbarmiya Shaikh vs. N.M. Mehta,
Commissioner of Police & Ors., (1995) 3 SCC 237.
(10) Ayub alias Pappukhan Nawabkhan Pathan vs. S.N. Sinha &
Anr. (1990) 4 SCC 552.
(11) Dinesh Vithal Patil & Anr. vs. State of Maharashtra & Ors.
2012 ALL MR (Cri) 3582.
(12) Shri Mehmood Shahjab Khan @ Pathan vs. The State of
Maharashtra & Anr. 2012 ALL MR (Cri) 3349.
(13) Mrs. Tsering Dolkar vs. The Administrator, Union Territory
Delhi & Ors., AIR 1987 SC 1192.
(14) Mrs. Saraswathi Seshagiri vs. State of Kerala & Anr. AIR
1982 SC 1165.
5. Mr. Tripathi has, during the course of his arguments,
handed over to us another judgment of a Division Bench of this
Court rendered in the case of Mohammed S. Khan @ Pathan vs.
State of Maharashtra & Anr., WP No.3906 of 2012 decided on 8th
May, 2013 = 2013 ALL MR (Cri) 3349.
6. On the other hand, Mr. Yagnik, learned APP appearing on
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behalf of the respondents would submit that there is no substance
in the Writ Petition and it deserves to be dismissed. He would
rely upon the affidavit-in-reply filed by the Detaining Authority.
He would submit that the sufficiency of the grounds or material
on which the detaining authority was satisfied that it was
necessary to detain the detenu with a view to prevent him from
acting in a prejudicial manner and as contemplated by the
statute, cannot be examined in Writ jurisdiction. The detaining
authority has placed before this Court materials to show that he
was subjectively satisfied that the detenu is acting in a manner
prejudicial to the maintenance of public order. Mr. Yagnik would
submit that strict rules of evidence do not bind the detaining
authority for these are not proceedings before a court of law. The
detaining authority can act and will be required to act not only on
the facts which are strictly of evidence, but on other materials as
well. All these materials have been carefully perused and
considered by the detaining authority. They have not been
accepted for what they are. The detaining authority satisfied
itself that since 2010, the detenu is engaged in criminal activities.
He has been habitually committing offences and which come
within the purview of Chapter XVI and XVII of the Indian Penal
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Code. Thus, he is a dangerous person. The criminal activities
within the jurisdiction of Bhosari, Hinjewadi and Pimpri Police
Stations in Pune city are prejudicial to the maintenance of public
order. In order to curb the criminal activities of the detenu,
preventive actions have been taken against him from time to
time. In that regard, Mr. Yagnik would invite our attention to the
chart which is referred to in the affidavit of the detaining
authority. Mr. Yagnik then submits that though this detenu was
externed for a period of one year from Pune District vide order
No.26 of 2014 dated 3rd December, 2014, that order of
externment was stayed by this Court. After this order, the
petitioner continued committing serious offences and those were,
according to Mr. Yagnik, extensively referred to in the detention
order. Thus, whenever there were any criminal complaints
registered, the detenu was arrested. He was released on bail and
after such release, he again committed serious offences. There is
a reign of terror and created by the detenu. The even tempo of
life is disrupted and disturbed. It is in these circumstances that
the senior Inspector of Police, Pimpri Police Station, Pune, sent a
proposal dated 24th July, 2015 for the detention of the detenu
under MPDA. This was forwarded through proper channel.
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7. Mr. Yagnik then stated that the Assistant Commissioner of
Police, Pimpri Division, Pune, received the proposal along with
the relevant documents on 24th July, 2015. Thereafter, he
scrutinized the papers. On 27 th July, 2015, he had verified the
two in camera statement of witnesses. Then, he submitted a
proposal along with the certificate of verification and relevant
documents to the Deputy Commissioner of Police, Zone-3, Pune,
on 27th July, 2015. ig That proposal was received along with
relevant documents and after perusal of the same, it was noticed
that the petitioner was released on bail in C.R.No. 392 2015
alleging offences punishable under sections 143, 147, 148, 149,
504, 506, 427 IPC r/w section 7 of the Criminal Amendment Act,
r/w section 37(1), 135 of the Maharashtra Police Act and r/w
section 4 and 25 of the Arms Act of Pimpri Police Station, Pune.
Hence that Police Station, through its senior Police Inspector,
sent a report to the Deputy Commissioner of Police, Zone-3, on 1 st
August, 2015, regarding petitioner's bail. The Deputy
Commissioner of Police, Zone-3 perused that proposal and all
documents and thereafter the proposal was forwarded on 3 rd
August, 2015. The proposal was also placed before the Additional
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Chief Commissioner of Police, Crime, Pune, on 3 rd August, 2015,
and thereafter he forwarded it to the Joint Commissioner of
Police, Pune, on 4th August, 2015. He perused all the documents
and applying his mind to the materials before him, he forwarded
the proposal to the detaining authority on 5th August, 2015. The
detaining authority received the proposal comprising of 226
pages of relevant documents on 5 th August, 2015, and he perused
it from 5th to 7th August, 2015. That is how the affidavit proceeds
to state that the detaining authority was subjectively satisfied
that the detenu is a weapon wielding dangerous desperado of
violent character and on the basis of the two offences i.e. C.R.
No.3098 of 2015 and C.R. No.392 of 2015, so also two in camera
statements, he reached the conclusion that the detenu is a
dangerous person within the meaning of section 2(b-1) of the
MPDA Act.
8. Mr. Yagnik then read out the detention order and
specifically the subjective satisfaction recorded therein to the
above effect. He would submit that the detaining authority was
satisfied that the detenu unleashed a reign of terror, became
perpetual danger to the society at large in the area of Bhosari,
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Hinjewadi and Pimpri Police Stations. The people are afraid and a
sense of insecurity and constant fear on account of the presence
of the detenu, therefore, enables the detaining authority to detain
him under section 3(2) of MPDA Act. Mr. Yagnik was at pains to
point out that C.R. Nos.178/2010, 269/2011 and 198/2012 are
mentioned along with the other CRs only to indicate the past of
the detenu. The detaining authority did not rely on anything
except the two offences, namely, the CRs referred above
alongwith the in camera statements. They are thus enough to
record the subjective satisfaction. Mr. Yagnik was at pains to
point out from the grounds in the petition that there is a
fundamental distinction between the order of detention being
vitiated for want of subjective satisfaction or the subjective
satisfaction being vitiated by non application of mind and the
continued detention of the detenue is vitiated for non compliance
with Article 22(5) of the Constitution of India. Mr. Yagnik
submits that the emphasis is on the right of the effective
representation being denied, but even that is not denied because
the petitioner was supplied all the documents, copies of the in
camera statements as well as copy of the verification report. The
in camera statements cannot be excluded from consideration
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simply because as Mr. Tripathi contends, the verification does not
appear on the face of the same nor the verification report, copy of
which is supplied to the detenu, sets out the verification as
desired and in the language of the petitioner's counsel. Mr.
Yagnik would submit that none of the decisions, therefore, can
have any bearing on the controversy in this petition and they are
distinguishable on facts. For these reasons, Mr. Yagnik would
submit that the petition be dismissed.
9.
Reliance is placed by Mr. Yagnik on the following decisions:
(1) Phulwari Jagdambaprasad Pathak vs. R.H. Mendonca &
Ors., (2000) SCC (Cri) 1263.
(2) Usha Agarwal vs. Union of India & Ors. (2007) 1 SCC 295.
(3) Vidyadhar H. Varma vs. R.H. Mendonca, Commissioner of
Police & Ors., 2000 ALL MR (Cri) 773.
(4) Santosh Bhagwan Patil vs. State of Maharashtra & Ors.,
2013 (3) Bom. C.R. (Cri) 231.
(5) Sunita Hanumant Fulore vs. State of Maharashtra, 2011
(5) Bom. C.R., 753.
10. For properly appreciating the rival contentions, a reference
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will have to be made to some basic facts. We have been noticing
that during the course of arguments in detention matters, certain
general grounds are set out in pleadings regarding the infraction
and breach of the constitutional guarantee and mandate but the
sweep of the arguments is not restricted to those grounds or the
language of the grounds on which the detention order is
challenged. The arguments overlap overlooking the fundamental
distinction in law between the grounds of challenge. Either the
detenu challenges the legality and validity of the detention order
or the continued detention pursuant to the same. In the former
challenge, there is attack on the subjective satisfaction while in
the latter, the emphasis is on violation of constitutional
safeguards post the order and its communication. We say
nothing more than inviting the attention of all concerned to the
following binding principles emerging from the judgment of the
Hon'ble Supreme Court reported in AIR 2013 SC 1376 Abdul
Nasar Adam Ismail vs. State of Maharashtra & Ors :
"17. We would like to make it clear that the delay
in disposal of the representation of the detenu has
vitiated only the continued detention of the detenu
and not the detention order. In Meena Jayendra
Thakur v. Union of India (1999) 8 SCC 177, this
Court was considering a case where the detenu was
detained under the provisions of the said Act. This
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Court held that if the detaining authority on the basis
of the materials before him did arrive at his
satisfaction with regard to the necessity for passing
an order of detention and the order is passed
thereafter, the same cannot be held to be void
because of a subsequent infraction of the detenu's
right or of non-compliance with the procedure
prescribed under law because that does not get into
the satisfaction of the detaining authority while
making an order of detention under section 3(1) of
the said Act. It does not affect the validity of the
order of detention issued under Section 3(1) of the
said Act. Similar view has been taken by this Court in
Sayed Abdul Ala, (2007AIR SCW 6974). In that case,
this Court was concerned with an order of detention
issued under the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act,
1988. It was argued that there was delay in
considering the representation of the detenu. Relying
on Meena Jayendra Thakur, this Court expressed
that even if it is to be assumed that there was some
delay in considering the representation, the same
would not vitiate the original order of detention. By
reason of the delay, only further detention of the
detenu will become illegal. The delay in considering
the representation does not vitiate the order of
detention itself. In Harish Kumar (AIR 2007 SC 1430
: 2007 AIR SCW 1820) this Court was again
considering an order of detention issued under the
provisions of the said Act. This Court reiterated the
same view and held that the detention order passed
at the satisfaction of the detaining authority on the
basis of the material available in no manner gets
vitiated for the reason of non-consideration of the
representation made by the detenu to the Central
Government. It was held that initial order of
detention was not rendered void ab initio. It may be
noted that even the Constitution Bench of this Court
in K.M. Abdulla Kunhi (AIR 1991 SC 574 : 1II1 AIR
SCW 302) held that any unexplained delay in disposal
of representation of the detenu would be a breach of
the constitutional imperative and it would render the
continued detention impermissible and illegal and set
aside the continued detention of the detenu."
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The confusion between the two, therefore, results in both
sides citing plethora of judgments either of this Court or the
Hon'ble Supreme Court of India. Some times, Division Benches do
not have the benefit of all the judgments being cited for some are
reported and others are not. In such circumstances, we would
not venture into laying down any broad legal propositions. Before
considering the applicability of the principles laid down in all
decisions, the facts are to be clearly and properly noted.
11. It is common ground before us that this detenu on whose
behalf the petition has been filed has projected firstly by the
unamended grounds that the detention order was issued on 7 th
August, 2015, and it is incumbent upon the detaining authority to
disclose to this Court as to what exactly was the proposal for
detention of the detenue made by the sponsoring authority. This
is in relation to the incidents which are noted and in which bail
was granted. However, this ground and which runs through
pages 4 and 5 essentially refers to the in camera statements
recorded on 15th July, 2015. Pertinently, at page 5 of the petition
the petitioner himself states that the in camera statements were
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recorded by the sponsoring authority on 15 th July, 2015, and
they were verified on 27th July, 2015. It is thereafter the
impugned order has been passed. The rest of the particulars of
this ground need not detain us.
12. The other aspect at page 6 of the petition refers to the
record covering 226 pages and placed before the detaining
authority. The argument with regard to very short time in which
the detention order came to be issued is mentioned in the passing.
However, we find that no grievance can be made by the detenu as
all the events and the complete chain is narrated in the affidavit
of the detaining authority. All the dates and events could be
gathered therefrom. It is not as if any hasty or hurried decision
has been taken for the detaining authority has set out the time
consumed and taken by him in considering the materials.
13. We do not find, therefore, that there is substance in such an
argument which is made in passing.
14. We should also not refer to page 7 onwards of the petition
for what we find is that the amended petition and the grounds
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post amendment are really pressed into service.
15. In that regard, the amended petition incorporating
additional grounds with the leave of this Court at page 18A
projects ground Nos.4(xvi) and 4(xvii). These grounds read as
under :
"4(xvi) The Petitioner says and submits that the
detaining authority has taken into consideration two
statements of witnesses 'A' and 'B' recorded in camera
for arriving at the satisfaction and for issuing the
order of detention. The Petitioner says and submits
that the abovesaid two camera statements are not
verified by any Senior Police Officer of the rank of
Asstt. Commissioner of Police and above and further
no copies of verification is furnished to the detenu
alongwith the statements. Thus the right to make
effective representation guaranteed to the Petitioner
under Article 22(5)of the Constitution of India is
violated. Such statements without verification are
not authentic documents and cannot be relied on by
the detaining authority for passing the order of
detention. The order of detention is illegal and bad in
law, liable to be quashed and set aside.
(xvii) The Petitioner says and submits that the
detaining authority has taken into consideration a
criminal case vide C.R. No. 3098 of 2015 under
Section 37(1) r.w. 135 and Section 7(25) of Arms
Act. The details of incident is narrated in paragraph
No.4.1 of the grounds of detention. The Petitioner
says and submits that on a plain reading of the said
incident by no stretch of imagination it will be held by
a man of prudence that as a result of mere finding in
possession of one sharp Koyta with the person and in
car of the Petitioner, public order is disturbed. The
Petitioner says and submits that mere possession of
any arm without any use and overt act of the same,
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cannot be held that public order is disturbed and if no
public order is disturbed, provisions of MPDA Act,
1981 i.e. Section 3 of the said Act cannot be attracted.
The order of detention is illegal and bad in law, liable
to be quashed and set aside."
16. Mr. Tripathi presses these two grounds essentially. With
regard to ground para 4(xvi), we find that the emphasis is on a
right to make effective representation guaranteed to the
petitioners under Article 22(5) of the Constitution of India being
violated.
17. However, during the course of his arguments, Mr. Tripathi
also assailed the detention order and the subjective satisfaction
recorded therein by submitting that once the two in camera
statements and one C.R. is omitted from consideration, then, all
that remains is a single C.R. which projects an offence punishable
only under the Arms Act. That could not have led to the
subjective satisfaction that it is a threat to the public order. In
such circumstances, the detention order itself is vitiated is the
argument of Mr. Tripathi.
18. We find from the record that the two in camera statements,
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copies of which are supplied to the petitioner, are of one witness
'A'. This witness 'A' gave his first statement on 15 th July, 2015
and before the senior Police Inspector, Pimpri Police Station,
Pune. That statement is recorded in Marathi and a true copy of
the same has been supplied to the petitioner. Then, this very
witness gave a supplementary statement on 27 th July, 2015.
Equally that is in Marathi and signed also in that language and
before the same authority. Then comes a statement of witness 'B'
which is recorded on 15th July, 2015 and equally he gave a
supplementary statement all of which as far as the language and
the authority before whom the statement is made is identical.
19. At page 41 of the paper-book we find a copy of the
confidential communication No.3768/Secret/2015 emanating
from the Assistant Commissioner of Police, Pimpri Division, Pune
City dated 27th July, 2015. That is addressed to the
Commissioner of Police, Pune City, on the subject of verification of
the statements recorded in camera. A copy of this has been
supplied to the detenu. This verification report states that the two
in camera statements were placed before this authority, namely,
the Assistant Commissioner of Police, Pimpri Division, Pune. He
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summoned these two witnesses, enquired from them the
incidents which they have narrated in their statements. The
incidents were confirmed by these two witnesses and thereafter
the report says that this authority is satisfied that the incidents
which are true, genuinely reflect the concern of all those making
them that the same would have a bearing on the detenu's
activities. Thus, the genuineness and truthfulness of the
incidents has been verified by the reporting authority by
summoning these two witnesses whose statements were recorded
in camera and based on this he states that it is true and correct
that the incidents did occur and that created fear and
apprehension in the minds of these persons.
20. Now, we must consider the arguments of Mr. Tripathi under
the heading "Non Furnishing Verification of in camera
Statements to Detenu Resulting in Violation of Article 22(5) of
the Constitution of India" commencing from a recent judgment
delivered by a Bench presided over by the Hon'ble Acting Chief
Justice and Hon'ble Mr. Justice A.S. Gadkari in the case of Jay @
Nunya Rajesh Bhosale vs. The Commissioner of Police, Pune &
Ors., 2015 ALL MR (Cri) 4437.
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21. This judgment relies upon the judgment of a Division Bench
of this Court rendered in the case of Smt. Subhangi Tukaram
Sawant vs. Shri R.H. Mendonca & Ors. 2001 ALL MR (Cri) 68 .
22. We would carefully refer to the facts in the case of Jay
(supra).
23. There, the detention order was passed on 19 th May, 2015,
under the same enactment MPDA Act. That order along with the
grounds of detention was served on the detenu on 19 th May,
2015. The true copies had been annexed to the petition. A
perusal of the grounds of detention (Annexure-B) shows that the
detention order was passed in two C.Rs and three in camera
statements. C.R. No.91 of 2015 of Faraskhana Police Station
referred to offences punishable under sections 384, 386 and 504
IPC. The second C.R. No.3088 of 2015 of the same Police Station
referred to section 37(1)(3) read with 135 of the Maharashtra
Police Act and section 4 read with section 25 of the Arms Act.
The detenu was found to be in possession of a koyta by the Police
when they were on patrolling duty within the limits of
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Faraskhana Police Station. Thereafter, reliance is placed on
three in camera statements.
24. With regard to these in camera statements, the specific
ground taken in the Writ Petition was that these statements were
not verified by any senior Police Officer of the rank of Assistant
Commissioner of Police or above and further, no copy of the
verification has been furnished to the detenu along with the
statements. Thus the right of the detenu to make an effective
representation against the detention order has been violated.
25. The detaining authority filed an affidavit-in-reply which is
referred by the Division Bench in extenso and wherein there is an
admission that the Assistant Commissioner of Police, City
Division, Pune, verified these in camera statements, but there
was no statement in the affidavit about furnishing of the
verification by the Assistant Commissioner of Police of the in
camera statements to the detenu. Therefore, the original record
was sent and the Assistant Commissioner of Police indeed put an
endorsement on all the statements that he had verified the same.
That endorsement is found at the bottom of all three in camera
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statements. However, it was noticed that in the copies of the in
camera statements of the witnesses supplied to the detenu, the
endorsement of the Assistant Commissioner of Police read that
"statements are verified" by the Assistant Commissioner of
Police. Instead of the word "verified" what is stated in the copy
furnished to the detenu is the word "perused". Once the original
file revealed as such, then, the Division Bench had no hesitation
in arriving at the conclusion that this right guaranteed had
indeed been violated. This was enough to vitiate the continued
detention of the detenu under MPDA Act.
26. However, the arguments as in the present case cover very
wide canvass. The APP in that case ( Jay) tried to support the
detention order which was made on five grounds in that case.
That referred to two C.Rs and three in camera statements. The
argument was assuming these three in camera statements cannot
be relied and ought to be omitted from consideration, section 5-A
of the MPDA Act would operate and that also would be enough to
sustain the detention order. That is how and surprisingly the
argument of the State proceeded not so much in justification of
the detention order, but to meet the ground of continued
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detention being vitiated for want of opportunity to make an
effective representation against the same.
27. That is how from paragraph 5 of the judgment, the
arguments read and as if the detention order itself has been
questioned and challenged on the ground that there could not
have been a subjective satisfaction as recorded based on the three
in camera statements and the two C.Rs.
28.
The Court found that one C.R. was also required to be
omitted from consideration. That was C.R. No.3088 of 2015. The
argument was that this alleges that the detenu was in possession
of a weapon. Merely being in possession of a weapon would not
lead to disturbing public order. This was a single case and it
cannot be said that the detenu is habitually committing offences
under the Arms Act. Reliance was placed upon Sudarshan
Tukaram Mhatre vs. R.D. Tyagi, Commissioner of Police, Thane &
Ors., 1990 Cri. L.J. 1964. Merely carrying a concealed firearm in
public place is not a menace to the public order unless of course
the person flourishes the weapon or by word or gesture indicates
that the weapon is with him and he shall not stop at using it. The
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court found that C.R. No.3088 of 2015 does not record any such
act on the part of the detenu. The weapon was never brandished.
He never said that he had the weapon and he will not stop using
it. Therefore, this incident does not affect the public order. Then
as far as C.R. No.91 of 2015 is concerned, the detenu came to
some hotel and threatened everybody in the place loudly that if
the complainant did not pay hafta of Rs.10,000/- per month, then
the hands and legs of the workers in the hotel would be broken
and the hotel would be closed down. It was alleged that because
of this loud threats and shouting the customers ran away.
29. On watching this incident in the hotel, the pedestrians on
the road got frightened and ran away. According to the State,
this was, therefore, an incident affecting public order. It affected
the maintenance of public order and, therefore, C.R. No.91 of
2015 would be clearly attracting the provisions of section 2(a)
(iv) of the MPDA Act. It is in dealing with this argument that the
following observations are made in paragraphs 9, 10 and 11 :
"9 The relevant definition applicable to a
'dangerous person' in section 2(a)(iv) is as follows:
"2. In this Act, unless the context otherwise
requires.-
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(a) "acting in any manner prejudicial to the
maintenance of public order" means-
(i)... .... .... ....
iv) in the case of a dangerous person, when he is
engaged, or is making preparation for engaging, in
any of his activities as a dangerous person, which
affect adversely, or are likely to affect adversely, the
maintenance of public order. The activity of the
detenu is clearly covered by Sec. 2(a)(iv).
Thereafter Mr. Tripathi submitted that if the grounds
relating to three in camera witnesses and the ground
relating to CR 3088 of 2015 is excluded only CR 91 of
2015 remains. He submitted that only on the basis of
this single solitary incident it cannot be said that the
detenu is a dangerous person. The detention order in
the present case has been passed against the detenu
because he is a `dangerous person' as visualized
under the MPDA Act, in which case, it would be
necessary to see Section 2(b-1) which defines
`dangerous person'. As per this section 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).
10 Thus, a perusal of the Section 2(b-1) would
show that if the person singly or as a member or a
leader of a gang "habitually commits" or attempts to
commit or abets the commission of any offence
punishable under Chapter XVI or Chapter XVII of the
IPC or Chapter V of the Arms Act, he would be a
dangerous person in terms of Section 2(b-1) of the
MPDA Act. Just as a single swallow does not make a
summer a solitary act, does not constitute a habit. In
the instant case, after the three in camera statements
are excluded from consideration as the verification of
all the in camera statements by the ACP was not
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furnished to the detenu and CR No. 3088 of 2015
cannot be taken into consideration, for the reasons
stated in paragraph 7 above by us, that leaves us to
only with CR No. 91 of 2015. We shall now proceed to
examine whether on the basis of this CR, the detenu
can be held to be a dangerous person so as to sustain
the order of detention.
of 2015 remains. In such case it can be held that the
detention order is issued only on the basis of CR No.
91 of 2015. This solitary act would not constitute a
"habit" . In our view on the basis of the said solitary
CR No. 91 of 2015 it cannot be said that the petitioner
- detenu "habitually commits" or attempts to commit
or abets the commission of any of the offences
mentioned in Section 2(b-1) of the MPDA Act and
since the detenu has been detained as he is a
"dangerous person", the impugned detention order
would not be sustainable in law."
30. A careful perusal of these findings and conclusions would
reveal that for the reasons that are elaborately recorded and
based on which the subjective satisfaction was held to be vitiated
exclude the three in camera statements and C.R. No.3088 of
2015. The single solitary incident and reflected in C.R. No.91 of
2015 was not enough to arrive at the subjective satisfaction that
the detenu is a dangerous person.
31. We are, therefore, of the firm opinion that this decision
must be held to be confined to the facts and circumstances of that
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case. Any broad or wide principle cannot be culled out, much
less, which is highlighted that a single incident does not
constitute a habit.
32. We say nothing more for there are plethora of judgments in
the prevention detention law itself and rendered by the Hon'ble
Supreme Court of India from time to time that such absolute legal
principle cannot be culled out from its decisions or from the
statutes enabling preventive detention. The State has made laws
and which, therefore, have been considered from time to time.
33. We would only refer to them and one of them is in the case
of Mrs. Saraswathi Seshagiri vs. State of Kerala & Anr. AIR 1982
SC 1165.
34. That was referred specifically in the Constitution Bench
judgment rendered in the case of Attorney General of India etc.
etc. vs. Amratlal Prajivandas & Ors. etc. etc. AIR 1994 SC 2179
(Para 47). The paragraph reads thus :
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"47. Now, it is beyond dispute that an order of
detention can be based upon one single ground.
Several decisions of this Court have held that even
one prejudicial act can be treated as sufficient for
forming the requisite satisfaction for detaining the
person. In Debu Mahato v. State of West Bengal
(1974) 4 SCC 135 : (AIR 1974 SC 816), it was
observed that while ordinarily-speaking one act may
not be sufficient to form the requisite satisfaction,
there is no such invariable rule and that in a given
case one act may suffice. That was a case of wagon-
breaking and having regard to the nature of the Act,
it was held that one act is sufficient. The same
principle was reiterated in Anil Day v. State of West
Bengal, (1974) 4 SCC 514 : (AIR 1974 SC 832). It
was a case of theft of railway signal material. Here too
one act was held to be sufficient. Similarly, in Israil
SK v. District Magistrate of West Dinajpur, (1975) 3
SCC 527: (AIR 1975 SC 168) and Dharua Kanu v.
State of West Bengal, (19875) 3 SCC 527 : (AIR 1975
SC 571), single act of theft of telegraph copper wires
in huge quantity and removal of railway fish-plates
respectively was held sufficient to sustain the order of
detention. In Saraswathi Seshagiri v. State of Kerala,
(1982) 2 SCC 310 : (AIR 1982 SC 1162), a case
arising under COFEPOSA, a single act, viz., attempt to
export a huge amount of Indian currency was held
sufficient. In short, the principle appears to be this:
Though ordinarily one act may not be held sufficient
to sustain an order of detention, one act may sustain
an order of detention if the act is of such a nature as
to indicate that it is an organised act or a
manifestation of organised activity. The gravity and
nature of the act is also relevant. The test is whether
the act is such that it gives rise to an inference that
the person would continue to indulge in similar
prejudicial activity. That is the reason why single acts
of wagon- breaking, theft of signal material, theft of
telegraph copper wires in huge quantity and removal
of railway fish- plates were held sufficient. Similarly,
where the person tried to export huge amount of
Indian currency to a foreign country in a planned and
premeditated manner, it was held that such single act
warrants an inference that he will repeat his activity
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in future and, therefore, his detention is necessary to
prevent him from indulging in such prejudicial
activity. If one looks at the acts the COFEPOSA is
designed to prevent, they are all either acts of
smuggling or of foreign exchange manipulation. These
acts are indulged in by persons, who act in concert
with other persons and quite often such activity has
international ramifications. These acts are preceded
by a good amount of planning and Organisation. They
are not like ordinary law and order crimes. If,
however, in any given case a single act is found to be
not sufficient to sustain the order of detention that
may well be quashed but it cannot be stated as a
principle that one single act cannot constitute the
basis for detention. On the contrary, it does. In other
words, it is not necessary that there should be
multiplicity of grounds for making or sustaining an
order of detention."
35. We do not think that we have to dwelve on this aspect and
lay down any legal principle or decide as to whether the principle
which Mr. Tripathi culls out from the Division Bench judgment in
Jay (supra) is correct or we not, we leave the matter here.
36. Suffice it to state that everything would depend upon the
facts and circumstances and the ground on which the detention is
challenged. For the present, we proceed on the assumption that
the ground in the present petition would enable Mr. Tripathi to
assail the subjective satisfaction.
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37. That is assailed in this case on the ground that the copies of
the verification statement which though supplied to the
petitioner is no verification in law at all. The judgment in the case
of Rohidas @ Pintya Laxman Gupte vs. The Commissioner of
Police, Pune, Writ Petition No. 395 of 2015 decided on 17 th April,
2015, proceeded on a consideration of the ground of detention at
paragraph 8 with respect to verification of the in camera
statements of the witnesses A and B by the Assistant
Commissioner of Police, Swargate, Pune. The verification done
with respect to these in camera statements was not furnished to
the detenu along with the documents in support of the grounds
and, therefore, the right to make effective representation
guaranteed under Article 22(5) of the Constitution of India is
violated. It is in relation to that in paragraph 6, the Division
Bench Rules thus :
"6. In response to the aforesaid ground No.7(n)
of the Petition, the Respondent No.1 i.e. the detaining
authority in his affidavit dated 7th April, 2015 has
stated that, in fact the original statements of
Witnesses 'A' and 'B' clearly show that the verification
was done by the concerned Assistant Commissioner
of Police and the said statements were produced
before him which were perused by him and in his
grounds of detention at paragraph No.8 he has
clearly stated that the Assistant Commissioner of
Police, Swargate Division, Pune has verified the
Witnesses 'A' and 'B' and submitted a report to him.
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That in the said report the Assistant Commissioner of
Police, Swargate Division, Pune has mentioned that
the facts given in the statements and apprehension
entertained by the Witnesses 'A' and 'B' are true and
reasonable. He has further stated that after perusing
the said report, he was satisfied that the facts
enumerated in the statements and apprehension
entertained by the Witnesses 'A' and 'B' are true and
reasonable. He has further stated that because of
non-furnishing of the said verification statements of
the Witnesses 'A' and 'B' recorded by the Assistant
Commissioner of Police to the detenu, the right of the
detenu to make effective representation guaranteed
under Article 22(5) of the Constitution of India is any
way prejudiced. He has further stated that with a
view to conceal the identity of the witnesses, the said
verification statements were not parted with the
detenu."
38. Then, reliance is placed and primarily on a Division Bench
judgment of this Court in the case of Smt. Subhangi Tukaram
Sawant vs. Shri R.H. Mendonca & Ors. 2001 ALL MR (Cri) 68 .
Once again we must notice the challenge in the case of Shubhangi
Sawant. Shubhangi Sawant proceeded on the footing that in
camera statements recorded by the senior Police Inspector and
verified by the Assistant Commissioner of Police, copies of which
were supplied to the detenu in the case did not contain the
verification made by the concerned Assistant Commissioner of
Police. Therefore, the violation to the mandate of Article 22(5)
has been held to be established and proved and that judgment
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proceeds to hold that the detention order is vitiated. It is
paragraph 3 of this judgment which is reproduced hereinbelow
that is consistently followed later.
"3. From the grounds supplied to the detenu it is
apparent that the detaining authority has taken into
consideration in camera statement of witness (A)
recorded on 16.9.1999 and in camera statement of
witness (B) recorded on that very date. There is no
dispute that the said in camera statements were
recorded by Senior Police Inspector, Saki Naka Police
Station and the said in camera statements were
verified by the Assistant Commissioner of Police.
However, the copies of in camera statements supplied
to the detenu do not contain verification made by the
concerned Assistant Commissioner of Police. This
has resulted in violation o Article 22(5) of the
Constitution of India and vitiates the order of
detention."
39. We must also, therefore, carefully refer to the judgment in
Smt. Vijaya Raju Gupta vs. R.H. Mendonca & Ors., 2001 ALL MR
(Cri) 48 where a Division Bench of this Court of which His
Lordship Hon'ble Mr. Justice R.M. Lodha (as His Lordship then
was) was a party, referred to the celebrated judgment of the
Supreme Court in the case of Phulwari Jagdambaprasad Pathak
vs. R.H. Mendonca & Ors., (2000) 6 SCC (Cri) 751 . In Vijaya
(supra) as well, what the Division Bench found was that in
camera statements were verified by a higher grade officer of the
rank of Assistant Commissioner of Police but there appeared to be
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an apparent inconsistency and dichotomy in the three affidavits
that were filed. The detaining authority's affidavit did not reveal
the compliance with the mandate of Article 22(5). The Court,
therefore, concluded that the English translation of the
verification made by the Assistant Commissioner of Police below
the in camera statements merely states that the language in
which the statements were recorded has been verified and there
was nothing more in it. If that was lacking and which enabled the
Division Bench of this Court to conclude that there was indeed a
verification, then, that factual aspect has prevailed upon the
Court in allowing the Writ Petition.
40. Phulwari's case clearly holds that in camera statements
regarding alleged acts of the detenu adversely affecting public
order can be utilized by the detaining authority for arriving at the
subjective satisfaction and that is not prohibited. The effect of
these in camera statements and which complied with the
constitutional guarantee was an aspect then considered in
Phulwari's case (supra) and whether that is enough to sustain the
subjective satisfaction. Meaning thereby, whether on the basis of
these statements the court can arrive at the conclusion that
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subjective satisfaction indeed met the tests and standards
stipulated by the MPDA Act. However, while concluding that the
detention order in that case was not vitiated, the Hon'ble
Supreme Court held that preventive detention measure is harsh,
but it becomes necessary in the larger interest of the society. It is
in the nature of a precautionary measure taken for preservation
of public order. The power is to be used with caution and
circumspection. For the purpose of exercise of this power, it is
not necessary to prove to the hilt that the person concerned had
committed any offences as stated in the Act. It is sufficient if
from the material available on record the detaining authority
could reasonably satisfy itself of the necessity for detention of the
person concerned in order to prevent him from indulging in
activities prejudicial to the maintenance of public order. In the
absence of any provision specifying the type of material which
may or may not be taken into consideration by the detaining
authority and keeping in view the purpose the statute intends to
achieve, the power vested in the detaining authority should not
be unduly restricted. It is neither possible nor advisable to
catalogue the types of materials which can form the basis of a
detention order under the Act. That will depend on the facts and
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situation of a case. However, the facts stated in the materials
relied upon should be true and should have a reasonable nexus
with the purpose for which the order is passed.
41. We cannot be unmindful and lose sight of these very vital
observations and conclusions of the Hon'ble Supreme Court of
India which underline the importance of a statute of the present
nature.
42.
In such circumstances and having perused all the
judgments cited by Mr. Tripathi on this point we are not in
agreement with him that there is no compliance with the
constitutional mandate in the instant case. The verification
report in the present case and placed on record is indeed a
verification. The Assistant Commissioner of Police is admittedly
a higher officer in the hierarchy. The statements recorded before
the senior Police Inspector of Pimpri Police Station and in camera
were placed before this Assistant Commissioner of Police. In his
verification report, he certifies that he summoned the persons
making such statements and they reiterated the contents of the
in camera statements before him. Based on this, he was satisfied
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that the incidents narrated are indeed true and have taken place
and, therefore, they could be said to be having reasonable nexus
with the criminal activities and that is why he forwarded the
proposals for the detention of the detenu to a higher officer in the
hierarchy.
43. None of the judgments cited lay down any principle that
there is any particular format in which the verification must be
done. The verification ought to be there.
ig The in camera
statements and the witnesses making them ought to be
questioned about them. Thus, it should be verification and not in
a particular format or answering 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 in camera statements or the copy of the same
supplied to the detenu. If there is an in camera statement
recorded and there is a verification done the verification can well
be contained in a separate report. So long as copy of the
statements and that report is forwarded to the detaining
authority, if that forms part of the material and documents taken
into consideration by the detaining authority, then, neither the
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detention is vitiated for lack of supply thereof 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 in camera. The detenue cannot expect
that the identity of these persons or the witnesses ought to be
revealed. Given the demands of secrecy and confidentiality in
such matters, though the report is confidential in nature, it has
not set out the names of these persons and advisedly. Yet copies
of all the statements and this report was furnished to the
petitioner. After the petitioner / detenu was indeed furnished a
copy of this report, then merely because such a verification as is
demanded by law does not appear on the face of the copies of the
in camera statements that would not vitiate the order of
detention nor the continued detention on the grounds of violation
of the constitutional mandate. The petitioner's assertion in the
grounds reproduced above is that no copies of the verification
report are supplied to the detenu. At the same time the contrary
plea is that there is no verification at all. Now, the argument is
otherwise and that the copy of verification report being supplied
is apparent from page 43 of the petition, but that is assailed as
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not in accordance with law. However, no requirement in law is
placed before us. The judgments relied upon are distinguishable
as they are not on this point at all.
44. Once we cannot exclude the in camera statements as
desired by Mr. Tripathi, then, the incidents therein and which are
found to be true and genuine together with the contents of the
C.Rs can certainly form the basis of a subjective satisfaction that
the detenue is a dangerous person. That the activities, therefore,
come within the purview of the definition of those terms and
relevant and material for our purpose in the MPDA Act is thus
apparent.
45. We cannot exclude the verification report and neither, as
desired by Mr. Tripathi, the contents of the C.R. for the law
requires the subjective satisfaction to be based on the activities of
the detenu being prejudicial to the maintenance of public order.
This not a vague or uncertain term. It is statutorily defined. In
the MPDA Act, unless the context otherwise requires "acting in
any manner prejudicial to the maintenance of public order"
means :
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(i) in the case of a slumlord , when he is
engaged, or is making preparations for engaging in
any of his activities as a slumlord, which affect
adversely, or are likely to affect adversely, the
maintenance of public order;
(ii) in the case of a bootlegger, when he is
engaged, or is making preparations for engaging, in
any of his activities as a bootlegger, which affect
adversely, or are likely to affect adversely, the
maintenance of public order;
(iii) in the case of a drug-offender, when he is
engaged, or is making preparations for engaging, in
any of his activities as a drug-offender, which affect
adversely, or are likely to affect adversely, the
maintenance of public order.
(iv)
in the case of a dangerous person, when he is
engaged, or is making preparations for engaging, in
any of his activities as a dangerous person, which
affect adversely, or are likely to affect adversely, the
maintenance of public order.
(v) in the case of a video pirates, when he is
engaged, or is making preparations for engaging, in
any of his activities as a video pirates, which affect
adversely, or are likely to affect adversely, the
maintenance of public order.
Explanation. - For the purpose of this clause (a),
public order shall be deemed to have been affected
adversely, or shall be deemed likely to be affected
adversely, inter alia, if any of the activities of any of
the persons referred to in this clause directly or
indirectly, is causing or calculated to cause any harm,
danger or alarm or a feeling of insecurity, among the
general public or any section thereof, or a grave or
widespread danger to the life of public health or
disturbs the life of the community by producing and
distributing pirated copies of music or film products,
thereby resulting in a loss of confidence in
administration:"
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46. This must be read together with sub-clauses (i) to (iv) and
the Explanation. That is an explanation for clause (a) as a whole.
That enacts a deeming fiction. Thus, the explanation takes in its
fold not only what is set out in clause (a), but also in the sub-
clauses (i) to (iv). The deeming fiction, therefore, cannot be
ignored nor the explanation as a whole. One finds that clause (iv)
therein has been pressed into service in the present case. The
term "dangerous person" is also defined in the very statute as
under :
"2. Definitions.- In this Act, unless the context
other requires.-
(a) ............
(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);"
47. A bare perusal of this definition would denote as to how 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
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punishable under Chapter V of the Arms Act, 1959, is a
dangerous person and if he is engaged or is making preparations
for engaging, in any of his activities as a dangerous person, which
affect adversely, or are likely to affect adversely, the
maintenance of public order, that he can be detained under
section 3 of the MPDA Act.
48. We must not forget this chain and which we have attempted
to connect with the aid of these statutory definitions. We have
not found anything in the context of the present case which
requires a different interpretation being placed on these words
and expressions.
49. Once we hold as above that the in camera statements,
copies of which were duly supplied as also the verification report
cannot be omitted from consideration then the contents thereof
and equally the two C.Rs can safely lead to the conclusion that the
detenu is a dangerous person. This is not a case of a single
swallow making a summer. This is not a case where the contents
which are subject matter of the two C.Rs are not referable to the
Chapters XVI and XVII of the Indian Penal Code or any of the
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offences punishable under Chapter V of the Arms Act, 1959.
Indeed, that is not the argument of the detenu as well. The
contents of the C.Rs are extensively referred and that is how the
subjective satisfaction is arrived at. To complete the chain, we
would reproduce paragraphs 6, 7, 8 and 9 of the detention order:
"6. After going through your criminal record, it
is seen that, you are a habitual and dangerous
criminal involved in serious crimes. Your dangerous
and criminal activities are threatening to public life
and property. You were arrested in various offences
and were granted bail by the Hon'ble court. After you
were released on bail, you have again committed
various serious crimes. The residents, local traders
and workers are under tremendous fear due to the
reign of terror created by you. Your terrorizing acts
have disrupted the routine life of the of the residents
of the locality. To contain your criminal activities,
preventive actions were taken against you. However,
your criminal activities are showing an ascending
trend and are prejudicial to maintenance of public
order. This shows that, normal laws of the and are
insufficient to contain your dangerous criminal
activities.
7. From the above facts, I am subjectively
satisfied that you are a "dangerous person" as defined
in Section 2 (b-1) of the said Act. You have unleashed
a reign of terror and have become a perpetual danger
to the society at large in the area of Bhosari,
Hinjewadi and Pimpri Police Station. The people are
experiencing a sense of insecurity and are living
under shadow of constant fear, whereby even day-to-
day business and activities of citizens are under
threat. You show no respect to law of the land and to
the citizens of the society where you live. You are
perpetually an impulsive violent man who wants to
spread terror in the society by your violent criminal
activities in connivance with your criminal
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associates.
8. I have carefully gone through the material
placed before me and I am subjectively satisfied that
you are acting in a manner prejudicial to the
maintenance of public order. On 27/07/2015 you
were granted bail by the Hon'ble court and since then
you are on bail. In view of your tendencies and
inclinations reflected in the offences committed by
you as stated above, I am further satisfied that having
become a free person, you are likely to revert to
similar activities. These are prejudicial to the
maintenance o public order in future and it is
necessary to detain you under the said Act to prevent
you from acting in such prejudicial manner in future.
9. I hereby communicate to you as required
under Section 8(1) of the said Act read with Article
22(5) of the Constitution of India, the aforesaid
grounds on which detention order has been passed by
me. The copies of documents placed before me are
enclosed herewith except the particulars of the
Witnesses in connection with grounds at paragraph
No.5 of grounds of detention which cannot be
furnished to you in the public interest for which I
claim privilege as per Section 8(2) of the said Act r/w
Article 22(6) of the Constitution of India. The
Assistant Commissioner of Police, Pimpri Division,
Pune has verified the Witnesses 'A' and 'B' and
submitted a report to me. In the said report, the
Assistant Commissioner of Police, Pimpri Division,
Pune has mentioned that the facts given in the
written statements and apprehension entertained by
the Witnesses 'A' and 'B' therein are true and
reasonable. After perusing the said report, I am
satisfied that the facts given in the statements and
apprehension entertained by the Witnesses 'A' and 'B'
are true and reasonable."
50. Upon a perusal of these paragraphs and which clearly refer
to not only the in camera statements, but the contents of the C.Rs,
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the subjective satisfaction that the detenu is a dangerous person
can be sustained. We are in agreement with Mr. Yagnik that in
the instant case, the incidents which are not of the immediate
past, but are of the years 2010 and 2012 are not relied upon, but
referred to indicate the activities indulged in by the detenu. They
disclose his past antecedents and activities. Beyond that, the
subjective satisfaction is not based on them. The subjective
satisfaction is based on the incidents of the immediate and recent
origin. Those have been extensively referred and we find that it
is not possible to agree with Mr. Tripathi that the incidents
recorded and forming part of C.R. Nos.3098 of 2015 and 392 of
2015 and the in camera statements together will not be enough to
arrive at the subjective satisfaction that the detenu is a
dangerous person within the meaning of the term and that the
criminal activities and of the nature referable to the statutory
prescription affect adversely the maintenance of public order.
51. Once we arrive at the above conclusion, then, it is not
necessary to refer to all the judgments and which have been
relied upon by Mr. Tripathi on the second point, namely, that the
single or solitary incident cannot form subject matter of the
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subjective satisfaction with regard to the detenu being a
dangerous person. That by habit and therefore, habitually he
should be indulging in such activities is the emphasis of the
arguments of Mr. Tripathi. All judgments on that point are
clearly, therefore, distinguishable for we are not concerned with
the case of a single solitary incident.
52. As a result of the above discussion, the Writ Petition fails.
Rule is discharged.
53. We clarify that the judgment that we have delivered in the
present case and distinguishing all the other authorities and
precedents is in the backdrop essentially of the facts and
circumstances of the present case. Secondly, having found that
there was indeed a verification report and which answers and
satisfies the requirement of the constitutional guarantee that we
conclude that the in camera statements could have formed the
basis of the subjective satisfaction.
G.S. PATEL, J. S.C. DHARMADHIKARI, J.
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