Nathuram Gopal Padvekar vs The District Magistrate And Ors
2016 Latest Caselaw 771 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                       CRIMINAL APPELLATE JURISDICTION




                                                                        
                 CRIMINAL WRIT PETITION NO.175 OF 2016




                                                
    Nathuram Gopal Padvekar                            ...Petitioner

                        Versus

    The District Magistrate, Ratnagiri




                                               
    & Ors.                                          ...Respondents

Mr. Udaynath Tripathi with Ms Gayatri Shigwan for the Petitioner. Mrs. M.H. Mhatre, APP for the Respondent -State.

CORAM: SMT. V.K. TAHILRAMANI & SMT. ANUJA PRABHUDESSAI, JJ

DATED: 21st March, 2016

ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J.]:

By this petition for seeking a writ of habeas corpus

under Article 226 of the Constitution of India, the Petitioner, who is

the detenu has taken exception to the order dated 27 th November,

2015 passed by the first Respondent in exercise of powers under

Section 3 (1) of the Maharashtra Prevention of Dangerous

Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous

Persons Act, 1981 (hereinafter referred to as the "M.P.D.A. Act").

By the said order, the first Respondent directed that the Petitioner

shall be detained by way of prevention in exercise of powers under

the said Act.

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2. Learned counsel appearing for the Petitioner has urged

only one ground before us i.e. ground 5(a). The relevant portion of

the ground is that the detaining authority has taken into

consideration two in-camera statements of the witnesses "A" and

"B". It is contended that the verification notes of the two in-

camera statements are not furnished to the detenu. Learned

counsel appearing for the Petitioner pointed out the affidavit of the

detaining authority in which it is stated that copies of in-camera

statements were duly verified by the Sub-Divisional Police Officer,

Ratnagiri and copies of these statements are provided to the

detenu. However, the affidavit is totally silent about furnishing of

the copies of verification of the in-camera statement to the

detenu.

3. We have given careful consideration to the submissions.

Perusal of order of the detaining authority shows that reliance has

been placed specifically on in-camera statements of the witnesses

A and B. Copies of the in-camera statements of the witnesses A

and B supplied to the Petitioner have been annexed to the Petition

which do not contain verification. In paragraph 4 of the affidavit in

reply filed by the detaining authority, it is stated that both the

statements were duly verified by the Sub-Divisional Police Officer,

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City Division, Ratnagiri. The detaining authority has merely stated

that copies of in-camera statements have been duly furnished to

the Petitioner detenu. We may note here that in Ground (a), a

specific stand has been taken that the copies of the verification

statement have not been furnished to the Petitioner. Thus, it is

undisputed position that there is a verification made of both the in-

camera statements and the copies of the verification have not

been furnished to the Petitioner detenu.

4.

Reliance has been placed by the learned counsel

appearing for the Petitioner on a decision of the Division Bench of

this Court in the case of Smt. Subhangi Thukaram Sawant V.

R.H. Mendonca & Ors., (2001 ALL MR (Cri) (68). He has also

placed reliance on another decision of a Division Bench of this

Court in the case of Vijay Ramchandra Angre Vs. Shri S.M.

Shangari & Ors., (2004 ALL MR (Cri.) 1974). The law

consistently laid down in this behalf is that the failure to supply

copies of in-camera statements to the detenu which do not contain

verification made by the concerned superior officer results into

violation of Article 22(5) of the Constitution of India which vitiates

the order of detention. Thus, in the present case, the order of

detention is vitiated on that ground.

5. The learned A.P.P. submitted that the order of detention

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is based on C.R. Nos.15 of 2015, 23 of 2015 and 26 of 2015 and

two in-camera statements. She submitted that thus the detention

order was issued on five grounds i.e. three C.Rs. and two in-

camera statements and if the incidents relating to the two in-

camera statements are excluded from consideration, the detention

order would still be valid on the basis of three C.Rs. i.e. C.R.

Nos.15 of 2015, 23 of 2015 and 26 of 2015. In support of her

contention, she placed reliance on Section 5A of the MPDA Act. In

view of the contention raised by the learned A.P.P., we have

carefully perused the incidents relating to the three C.Rs. We find

that the facts relating to three C.Rs. are not such that could be

said to be affecting the maintenance of public order, hence, the

incidents relating to these three C.Rs. cannot be taken into

consideration and we would only have to rely on the incidents

relating to the two in-camera statements. On going through the

record we found that in fact no verification of in-camera

statements has been furnished to the detenu. Hence, the

incidents relating to the two in-camera statements also cannot be

taken into consideration.

6. In view of the above, the petition must succeed. Hence,

rule is made absolute in terms of prayer clause 10 (b).

(SMT. ANUJA PRABHUDESSAI,J.) (SMT. V.K. TAHILRAMANI,J.)

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