Sau. Anita Rupendrasingh Parmar vs State Of Maharashtra, Thr. Home ...
2016 Latest Caselaw 6759 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                       
                     NAGPUR BENCH, NAGPUR


                     CRIMINAL WRIT PETITION NO.805 OF 2016




                                                                      
    Sau. Anita Rupendrasingh Parmar,
    Aged about 46 years, Occupation Household,
    R/o Jatharpeth, Kedia Plots, Akola.                           ..... Petitioner.




                                                        
                                        ig   ::  versus  ::

    1.  State of Maharashtra,
    Through Home Department (Special),
                                      
    Mantralaya, Madam Cama Road,
    Mumbai-32.

    2.  The Principle Secretary to the
    Government of Maharashtra,
            


    Home Department (Special),
         



    Mantralaya, Madam Cama Road,
    Mumbai-32.

    3.  The District Magistrate,





    Akola and Detaining Authority,
    Akola.                                                                    ..... Respondents.

    =======================================
                  Shri P.V. Navlani, counsel for the petitioner.3
                  Shri S.S. Doifode, Addll.P.P. for respondent Nos.1 to 3.





    =======================================

                                CORAM          :  B.P. DHARMADHIKARI &
                                                  KUM. INDIRA K. JAIN, JJ.

                                DATED          :  NOVEMBER 29, 2016.



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ORAL JUDGMENT (Per : B.P. Dharmadhikari, J.)

1. Heard finally by the consent of learned counsel for the

parties by issuing Rule.

2. On 16.11.2016, this Court has passed following order :

"The learned A.P.P. seeks time of two

weeks to file reply.

Request is strongly opposed by the learned

Counsel for the petitioner. He submits that in camera statements of the witnesses "A" and "B" mentioned on the ground of detention were never supplied to the

petitioner. This was pointed out to the State Government at the time of

confirming the order of detention and it has been over looked. Specific ground in this respect is also raised in the present petition.

This Court has issued notice on 20th October, 2016. In this situation, we grant time till 29th November, 2016 by way of last chance. Record and proceedings

(original) shall be made available to this Court on that day.

Authenticated copy of this order be supplied to the learned Counsel appearing for the parties to act upon."

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3. Learned Additional Public Prosecutor Shri S.S. Doifode, in

the wake of that order, today seeks an adjournment. He submits that

though record and proceedings are received, as there is no express

mention anywhere that the copies of in camera witnesses were made

available to the petitioner, he is trying to have instructions and needs

time to file appropriate affidavit.

4. Learned counsel Shri P.V. Navlani for the petitioner is

opposing the request made by learned Additional Public Prosecutor

Shri S.S. Doifode.

5. We find that the matter is of preventive detention and this

Court has issued notice in the matter on 20.10.2016. The petitioner

has on 16.11.2016 restricted his challenge only to ground of non-

supply of copy of in camera witnesses.

6. Perusal of grounds in support of order of detention dated

3.8.2016 reveals that in paragraph No.4 total ten offences are looked

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into. Offences at Serial Nos.1 to 8 are for a period from 1.12.2013 to

21.7.2015. Offence at Serial No.9 is dated 1.1.2016 and last offence

at Serial No.10 is dated 11.4.2016. Thus, there are only two offences

which have taken place in 2016. The offence allegedly committed on

1.1.2016 is under Sections 4 and 25 of the Arms Act, 1959 and the

matter is pending before the competent authority. The offences

allegedly dated 11.4.2016 are under Sections 452, 506(2), 143, 144 of

the Indian Penal Code read with Sections 4 and 25 of the Arms Act,

1959 and the investigation into it is still going on.

7. The authorities have, in addition thereto, relied upon

statements of witnesses A and B in paragraph No.7 of the grounds of

detention. Witness A has spoken of an event in April 2016 while

witness B speaks of an event which has taken place in May 2016.

8. After grounds of detention is served upon the petitioner,

the petitioner has submitted his reply immediately and pointed out

that he was not given copies of in camera statements and, therefore,

was not certain about the contents thereof. However, because of his

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apprehension, he has mentioned two names and also attempted to

explain why these persons are likely to depose against him. The

specific ground in the petition, in this respect, has not been countered

by the respondents. At ground No.(VII), the petitioner has pleaded

that in camera statements, which formed foundation, have not been

made available to him.

9. Learned Additional Public Prosecutor has, as per our order

dated 16.11.2016, made the record and proceedings available for

perusal of this Court. It is not in dispute that the record and

proceeding do not show service of these two in camera statements

upon the petitioner.

10. Learned Additional Public Prosecutor has, however, urged

that the reply given by the petitioner to grounds of detention clearly

shows that he was aware of the contents thereof and as such no

prejudice has been caused to him. He states that as there is no

prejudice, the absence of evidence on record to show service of in

camera statement upon the petitioner is not fatal. He contends that

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as this is the only ground pressed, in view of reply to the grounds of

detention, the same needs to be rejected and order of detention must

be upheld.

11. The petitioner has place reliance upon the judgment of the

Honourable Supreme Court in the case of Smt. Shalini Soni and others

..vs.. Union of India and others, reported at (1980)4 SCC 544.

Paragraph Nos.6 and 7 therein show that service of not only grounds

of detention but also of factual material on the basis of which grounds

have been formulated is essential. The inference drawn from that

material only cannot be supplied but the material on the basis of

which the said inference has been drawn also needs to be served upon

the petitioner. The exercise or process of application of mind must be

perceived and evaluated by the petitioner.

12. Here, admittedly, there is nothing on record to demonstrate

the service of copies of statements of in camera witnesses A and B

upon the petitioner. The grievance, in this respect, is made by the

petitioner at the earliest possible opportunity while representing

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against his detention and, thereafter, in the petition. The record and

proceedings produced before this Court do not have any material to

the contrary and, therefore, the statement made by the petitioner

needs to be accepted. The judgment mentioned (supra) also supports

submission of learned counsel for the petitioner.

13.

Learned Additional Public Prosecutor, however, has

submitted that as in the representation the petitioner has submitted

that in camera statements may have been made by named two

persons, the petitioner has not suffered any prejudice. It is merely a

guesswork of the petitioner and on the basis of his comprehension, he

has also pleaded appropriate defence. That by itself does not mean

that copies of statements of in camera witnesses need not have been

supplied to him. His inability to appreciate the application of mind

and subjective satisfaction is substantiated here.

14. Argument of absence of prejudice is, therefore, erroneous.

The Constitution of India and the Law warrant service of such

documents upon him and its non-supply cannot be looked into as a

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directory requirement in these facts.

15. We, therefore, find that order of detention dated 3.8.2016

passed by respondent No.3 cannot be sustained. The said order along

with later order by respondent No.1 upholding it dated 7.11.2016 are

quashed and set aside.

16. The criminal writ petition is thus allowed. Rule is made

absolute accordingly.

The record and proceeding be sent back to the Trial Court.

                           JUDGE                                      JUDGE





    !!  BRW  !!





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                                    C E R T I F I C A T E




                                                           

I certify that this Order/Judgment uploaded is a true and correct copy of original signed Order.

Uploaded by : Bhushan R.Wankhede. ig Uploaded on :- 01/12/2016 (Personal Assistant)

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