Bombay High Court

Vijaya Ganesh Gajre vs The Commissioner Of Police And Ors on 6 May, 2016

Bench: V.K. Tahilramani

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. 5052 OF 2015

Vijaya Ganesh Gajre
Age 23 Years, Occupation : Housewife,
Residing at Sadesatara Nali Road,
Kamathe Vasti Malwadi, Hadapsar, Petitioner

Pune. .. (Wife of Detenu)

Versus

1. The Commissioner of Police.
Pune.
2. The State of Maharashtra
(Through Addl. Chief Secretary

to Government of Maharashtra,
Home Department, Mantralaya,
Mumbai.

3. The Superintendent

Amravati Central Prison,
Amravati. .. Respondents

...................
Appearances
Mr. Udaynath Tripathi Advocate for the Petitioner

Mrs. M.H. Mhatre APP for the State
...................

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

Reserved on : APRIL 28, 2016.

Pronounced on : MAY 06, 2016

JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. Heard the learned counsel for the parties.



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2. The petitioner who is the wife of the detenu - Ganesh @

Pramod Rohidas Gajre has, by way of this petition, raised the

challenge to the order of detention dated 8.12.2015 passed

by respondent No. 1 under the Maharashtra Prevention of

Dangerous Activities of Slumlords, Bootleggers, Drug

Offenders, Dangerous Persons and Video Pirates Act, 1981

(for short, 'the said Act'). The said detention order has been

passed on the basis of two C.Rs. i.e C.R. No. 358 of 2015 and

C.R. No. 3086 of 2015 of Hadapsar Police Station and two in-

camera statements of witnesses A and B.

3. Mr. Tripathi has raised only one ground of challenge i.e

Ground 6J. The said ground reads as under:-

"6J. The Petitioner says and submits that the order of

detention is founded on the basis of two registered

criminal cases vide C.R. No. 358 of 2015 and C.R. No.

3086 of 2015 and two in-camera statements of

witnesses 'A' and 'B' recorded in-camera. The detaining

authority has recorded his subjective satisfaction in para

7 of the grounds of detention alleging that the detenu

has unleashed a reign of terror and has become a

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perpetual danger to the society at large in the areas of

Kondhawa, Wanawadi and Hadapsar Police Station of

Pune city whereas it is pertinent to note that all the

incidents occurred as referred to in above said criminal

cases and in-camera statements within the jurisdiction

of Hadapsar Police Station of Pune City only. Such

allegations are also made in para No. 2 of the grounds of

detention. Thus, the satisfaction recorded in para 7 of

the grounds of detention is erroneous and shows clear

non-application of mind of the detaining authority. The

said satisfaction is vitiated. The order of detention is

illegal and bad in law, liable to be quashed and set

aside."

4. Paragraph 7 of the grounds of detention in which

subjective satisfaction is recorded reads as under:-

" 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 Kondhawa, Wanawadi and

Hadapsar Police Stations. 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

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respect to law of the land and to the citizens of the

society where you live. You are perpetually an

impulsively violent man who wants to spread terror in

the society by your violent criminal activities, in

connivance with your other criminal associates."

5. Mr. Tripathi stated that two C.Rs. and two incamera

incidents relate to Hadapsar Police Station. In such case the

detaining authority could not have reached the subjective

satisfaction that the detenu has unleashed a reign of terror &

had become a perpetual danger to the society at large in the

areas which fall within the jurisdiction of Kondhawa Police

Station or Wanawadi Police Station.

6. The affidavit in reply filed on behalf of the detaining

Authority states that there is reference to the areas falling

within the jurisdiction of Kondhawa and Wanawadi Police

Station on the basis of the past criminal record of the detenu

as mentioned in paragraph 3 of the grounds of detention.

However, in the very same affidavit, the detaining Authority

has stated that no reliance was placed upon the past

criminal record mentioned in paragraph 3 of the grounds of

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detention. If according to the detaining Authority, no

reliance was placed upon the past criminal record which is

mentioned in paragraph 3 of the grounds of detention, then

the detaining Authority could not have arrived at subjective

satisfaction on the basis of material on which he has not

placed any reliance. In any event, paragraph 3 refers to only

one C.R. of Kondhawa Police Station which is of the year

2009 and reference is made to two C.Rs. of Wanawadi Police

Station both of which are of the year 2011. The detention

order has been issued on 8.12.2015. In the year 2015, no

reliance could have been placed on the C.Rs. of the year

2009 or 2011 because that would amount to placing reliance

on stale incidents which cannot be countenanced.

7. Mr. Tripathi placed reliance on a decision of the

Supreme Court in the case of Mustakmiya Jabbarmiya

Shaikh Vs M.M. Mehta, Commissioner of Police 1. In the

said decision, it is observed in paragraph 10 as under:-




    1 (1995) 3 SCC 237

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" 10....This apart the incident had occurred on 24-4-1993

while the detention order was passed on 19-8-1994 after

the lapse of more than 16 months. This long lapse of

time between the alleged prejudicial activity and the

detention order loses its significance because the said

prejudicial conduct was not approximate in point of time

and had no rational connection with the conclusion that

the detention was necessary for maintenance of public

order. Such a stale incident cannot be construed as

justifiable ground for passing an order of detention........"

8. In a decision in the case of Kamlakar Prasad

Chaturvedi Vs State of M.P. & Anr. 2, the Supreme Court

in paragraph 12 has observed as under:-

"12. The first two incidents which are of 1978 and 1980

are mentioned as grounds of detention in the order

dated May 6, 1983. There can be no doubt these grounds

especially ground No. 1 relating to an incident of 1978

are too remote and not proximate to the order of

detention. It is not open to the Detaining Authority to

pick up an old and stale incident and hold it as the basis

of an Order of detention Under Section 3(2) of the Act."

9. In view of the above decisions of the Supreme Court, no

2 (1983) 4 SCC 443

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reliance can be placed by the detaining Authority on C.R. No.

96/2009 of Kondhawa Police Station and C.R. Nos. 218/2011

and 3156/2011 of Wanawadi Police Station. Learned APP

pointed out that even otherwise it is not the case of

detaining Authority that any reliance was placed on any of

these three C.Rs. which pertain to Kondhawa Police Station

and Wanawadi Police Station. In such case, we fail to

understand how in the grounds of detention, the detaining

Authority could have stated that the detenu has unleashed a

reign of terror and had become perpetual danger to the

society at large in the area of Kondhawa and Wanawadi

Police Stations. This appears to be a simple case where the

detaining Authority has not applied its mind at all. The

subjective satisfaction of the detaining Authority appears to

have been arrived at on a wrong set of facts. The subjective

satisfaction can be arrived at by the detaining Authority only

on the basis of the material which he has relied upon to pass

the detention order. The detaining Authority has not relied

upon any case of Kondhawa Police Station or Wanawadi

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Police Station. In such case, the detaining Authority could

not in paragraph 7 have stated that it was subjectively

satisfied that the detenu has unleashed a reign of terror and

had become a perpetual danger to the society at large

within the limits of Kondhawa and Wanawadi Police Stations.

10. The grounds on which the subjective satisfaction is

passed must be such as a rational human being can consider

connected with the fact in respect of which the satisfaction is

to be reached. They must be relevant to the subject matter

of the inquiry. When the detaining Authority has clearly

stated that the detaining Authority has not relied upon the

C.Rs. which are mentioned in paragraph 3 of the grounds of

detention which relate to Khondawa and Wanawadi Police

Stations, the detaining Authority could not have recorded its

subjective satisfaction based on the cases stated in

paragraph 3 of the grounds of detention. From all these

facts, a legitimate inference can fairly be drawn that the

Authority has not applied its mind to the relevant facts.



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11. Where the liberty of a subject is involved and he has

been detained without trial, and a law made pursuant to

Article 22 which provides certain safeguards, it is the duty of

this Court as the custodian and sentinel on the ever vigilant

guard of the freedom of an individual to scrutinize with due

care and anxiety that this precious right which he has under

the Constitution is not in any way taken away capriciously,

arbitrarily or without any legal justification. From the

grounds of detention as well as the affidavit of the detaining

Authority, it is clear that there was no material before the

detaining Authority other than two C.Rs i.e C.R. Nos. 358 of

2015 and 3086 of 2015 and two in-camera statements of