Bombay High Court
Suman Sudhakar Jadhav vs The Commissioner Of Police And Ors on 22 March, 2016
Bench: V.K. Tahilramani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 5036 OF 2015
Smt. Suman Sudhakar Jadhav ]
Age 50 years, Occ: ]
Residing at Lokmanya Nagar ]
Pada No.4, Babulal Seth Chawl ]
Near Naresh Kirana Store ]
Thane (West) Thane ]..Petitioner
[Mother of Detenu]
Vs.
1. The Commissioner of Police ]
Thane ig ]
]
2. The State of Maharashtra ]
(Through Addl. Chief Secretary ]
to Govt. of Maharashtra, ]
Home Department, Mantralaya ]
Mumbai. ]
]
3. The Superintendent, ]
Nashik Road Central Prison, ]
Nashik. ]..Respondents
....
Mr. Udaynath Tripathi Advocate for Petitioner
Mrs. A.S. Pai A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
SMT. ANUJA PRABHUDESSAI, JJ.
DATED : MARCH 22, 2016
ORAL ORDER [PER SMT. V.K.TAHILRAMANI, J. ]:
1 Through this writ petition preferred under Article 226
of the Constitution of India, the petitioner - Suman Sudhakar
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Jadhav who is the mother of detenu - Ganesh Sudhakar Jadhav
@ Kalya Ganya, has impugned the order of detention dated
2.12.2015 passed by Respondent no.1 Commissioner of Police,
Thane, detaining the detenu under Sub-Section (2) of Section 3
of Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug-offenders and Dangerous Persons
and Video Pirates Act, 1981 (Mah. Act No. LV of 1981)
(Amendment 1996) (Mah. Ord. X of 2009) (hereinafter referred
to as "MPDA Act"). The detention order along with the grounds
of detention dated 2.12.2015 was served on the detenu on
2.12.2015.
2 Though a number of grounds have been raised in this
petition assailing the order of detention, only one ground was
pressed before us i.e. ground 6(b) in the petition. The said
ground reads as under:
"6(b) The petitioner says and submits that the
detaining authority has specifically mentioned in the
opening paragraph of the grounds of detention that
the said authority is communicating to the detenu
the grounds as mentioned in paragraph No. 4(a) on
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which the order of detention has been passed by the
said authority on 01.12.2015. There is only one case
i.e. C.R. No. I-559 of 2015 in para 4(a) of the grounds
of detention. It is therefore, clear that para 5 of the
grounds of detention is not considered by the said
authority for passing order of detention. The
petitioner says and submits that for a single solitary
incident as narrated in abovesaid C.R., the petitioner
cannot be called a "Dangerous Person". The
provisions of MPDA Act cannot be applied in this case.
The order of detention is illegal and bad in law, liable
to be quashed and set aside".
3 Mr. Tripathi, the learned counsel appearing for the
petitioner drew our attention to the grounds of detention. In
the grounds of detention, it is specifically stated as under:
"I hereby communicate to you the grounds as
mentioned in paragraph No. 4(a) below on which the
detention order has been passed by me on this day
against you under-section (2) of Section 3 of the said
Act".
Mr. Tripathi contended that from this it is clear that
the detaining authority has issued the detention order only
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based on the ground which is mentioned in 4(a) of the grounds
of detention. 4(a) of the grounds of detention only deal with
one case relating to C.R. No. I-559 of 2015 of Vartak Nagar
Police Station. The said case is under Sections 392, 385, 427,
506(II) read with Section 34 of IPC and under Section 37(1) and
135 of the Bombay Police Act. Mr. Tripathi submitted that from
the grounds of detention, it is clear that the detaining authority
has only relied on C.R. No. I-559 of 2015 to issue the order of
detention. He submitted that the detenu has been detained as
he is a "dangerous person" and a person can be called
"dangerous person" only if he habitually commits any of the
offences punishable under Chapter XVI or XVII of IPC or any of
the offences punishable under Chapter V of the Arms Act. Mr.
Tripathi submitted that in paragraph 1 of the grounds of
detention, the detaining authority has clearly stated that the
detention order has been issued on the basis of grounds
mentioned in paragraph 4(a) of the grounds of detention. In
paragraph 4(a) only one case is mentioned i.e. CR No. I-559 of
2015. Mr. Tripathi submitted that only on the basis of this
single solitary incident, it cannot be said that the detenu is a
"dangerous person".
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4 The detention order in the present case has been
passed against the detenu because he is a "dangerous person"
as visualized under MPDA Act. In such case, it would be
necessary to see the definition under MPDA Act relating to
"dangerous person".
The relevant definition applicable to a "dangerous
person" which is in section 2(a)(iv) of the MPDA Act is as
follows:
"2. In this Act, unless the context otherwise requires-
(a) "acting in any manner prejudicial to the
maintenance of public order" means-
(i) ... ... ... ...
(iv) in the case of 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."
5 The activity of the detenu is clearly covered by Sec.
2(a)(iv) but that is not enough. It would also be necessary to
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see Section 2 (b-1) of the MPDA Act which deals with
"dangerous person" 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);]".
[EMPHASIS SUPPLIED]
6 Thus, a perusal of Section 2(b-1) would show that if a
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, it is clear that the
detaining authority has issued the order of detention based
only on paragraph 4(a) which deals with C.R. No. I-559 of 2015.
On the basis of this solitary ground, it cannot be said that the
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case of the detenu fits in the definition of "dangerous person"
as visualized in Section 2(b-1) of the MPDA Act. This solitary
act pertaining to CR No. I-559 of 2015 would not constitute a
"habit". On the basis of this C.R. it cannot be said that the
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. Since the detenu has been detained as
he is "dangerous person" the impugned order of the detention
would not be sustainable in law.
7 For the aforesaid reasons, we allow this writ petition
and quash and set aside the impugned detention order dated
2.12.2015 passed by respondent no.1 and direct that detenu -
Ganesh Sudhakar Jadhav @ Kalya Ganya be released forthwith
unless wanted in some other case.
8 Rule is made absolute in above terms.
[ SMT. ANUJA PRABHUDESSAI, J.] [ SMT. V.K.TAHILRAMANI,J. ]
kandarkar
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