Harish Patil vs The State Of Maharashtra And Ors
2016 Latest Caselaw 5921 Bom

Sherla V.



                                                                              wp.1398.2016.doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                      
                             CRIMINAL WRIT PETITION NO.1398 OF 2016

            Harish Patil                                ... Petitioner




                                                              
                  Vs.

            The State of Maharashtra & Ors.             ... Respondents




                                                             
            Mrs.Aisha M. Zubair Ansari for the Petitioner
            Mrs.M.H. Mhatre, APP, for Respondent - State




                                                  
                                               CORAM: SMT. V.K. TAHILRAMANI &
                                           ig          MRS.MRIDULA BHATKAR, JJ.
                                         RESERVED ON : AUGUST 24, 2016
                                       PRONOUNCED ON: OCTOBER 10, 2016
                                         
            JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.)

1. By means of this writ petition filed by the friend of the detenu,

the detention order passed by respondent No.2 District Magistrate,

Jalgaon, under The Maharashtra Prevention of Dangerous Activities

of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons,

Video Pirates, Sand Smugglers and persons engaged in Black

Marketing of Essential Commodities Act, 1981 is being challenged.

Respondent No.2 by the detention order dated 16.3.2016 ordered the

detention of the detenu Nilesh Dnyaneshwar Desale to prevent him

from acting in any manner prejudicial to the maintainance of public

order.

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2. From the grounds of detention furnished to the detenu, it is

apparent that the detention order is based on 4 C.Rs and two in-

camera statements. The 4 CRs are C.R. Nos.166 of 2010, 134 of

2015, 135 of 2015 and 21 of 2016. All the 4 CRs are of Bhadgaon

police station in Jalgaon. C.R. No.166 of 2010 is under sections 353,

379, 504, 506 r/w section 34 of the Indian Penal Code. C.R. No.134

of 2015 is under sections 395, 325, 326, 323, 143, 147, 148, 149,

448, 504 and 506 of the Indian Penal Code. C.R. No.135 of 2015 is

under section 379 r/w section 34 of the Indian Penal Code and C.R.

No.21 of 2016 is under sections 379, 420 and 109 of the Indian

Penal Code. All 4 CRs pertain to theft of sand. The incidents

relating to the two in-camera witnesses relate to threat and assault in

relation to theft of sand by the detenu. Hence, the detenu has been

detained as he is a Sand Smuggler and his activities are prejudicial

to public order as envisaged under section 2 (a) subsection (iv-a) of

the Act. Sub-section (iv-a) of section 2 (a) reads as under:

"(iv-a) in the case of a sand smuggler, when he is engaged, or is making preparations for engaging, in any of his activities as a sand smuggler, which affect adversely, or are likely to affect adversely, the maintenance of public order;"

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3. The first ground raised by the learned Counsel for the petitioner

is in ground 4(i). In short, in relation to this ground, it is contended

that the detention order is issued on 16.3.2016 whereas on the same

day, i.e.,on 16.3.2016 at 1.20pm and 1.25pm, the Detaining Authority

has put endorsement about the truthfulness of the in-camera

statements. This means that the detention order and the grounds of

detention were prepared thereafter and detention order and grounds

of detention alongwith accompanying documents were served on the

detenu on 16.3.2016 at about 9.10pm. Hence, it is submitted that

there was not sufficient time for the Detaining Authority to properly

apply its mind to the facts of this case and to issue the order of

detention. It is further submitted that the time period is so short that

on account of paucity of time, there could not have been proper

application of mind by the Detaining Authority, hence, on the ground

of non-application of mind, the detention order is vitiated.

4. In addition, on going through the affidavit filed by the Detaining

Authority, Mrs.Ansari submitted that the affidavit clearly shows that

the proposal is dated 15.3.2016. The set of

documents which was served on the detenu

consists of 11 documents running into 187 pages. Hence, in such a

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short time, it was not possible for the Detaining Authority to properly

apply its mind and to issue an order of detention.

5. Mrs.Ansari has relied on two decisions wherein she stated that

in similar circumstances on account of paucity of time on the ground

of non-application of mind the detention order was quashed. The first

decision is dated 20.12.1985 of the Supreme Court in the case of

Shri Umesh Chandra Verma vs. Union of India and anr 1. In the

said case, the detenu was intercepted on the morning of 12.6.1985

and a large quantity of contraband gold was recovered from him. He

was interrogated the entire day on 13.6.1985. Thereafter at 6pm, he

was formally arrested. The same night, the detention order was

issued against the detenu. Mrs.Ansari pointed out that in the said

case the order of detention and the documents ran into about 234

pages and the documents included the arrest memo which was

prepared at 6pm on 13.6.1985. This arrest memo which was

prepared at 6pm, was relied upon by the Detaining Authority which

indicated that the arrest memo was placed before the Detaining

Authority some time after 6pm. It was submitted in the said case that

if the last document was generated at 6pm, it would certainly be

difficult, if not impossible, for the Detaining Authority to issue order of 1 Criminal Appeal No.878 of 1985 arising out of SLP (Cri.) No.3376/85

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detention the same night. Looking to the facts of the case, the

Supreme Court held that the Detaining Authority could not have

possibly applied its mind to the voluminous documentary evidence

which was placed before him and for that reason alone, the order of

detention was quashed.

6. The second decision on the above point relied upon by

Mrs.Ansari is of the Division Bench of this Court in the case of

Smt.Kirti Sujit Satam vs. State of Maharashtra and ors 2.

ig On

perusal of the said decision, it shows that on 26.12.2005, the file was

placed before the Detaining Authority for the first time and the

detention order was issued on the same day. In the said case, it was

submitted by the learned Counsel for the detenu that it was not

physically possible for the Detaining Authority to peruse almost 1712

pages comprising of 154 documents in such a short period. This was

so because the Detaining Authority did not have even 12 hours to

scrutinise about 1712 pages and thereafter issue the order of

detention on the same day. However, in the present case, it is seen

that the proposal is dated 15.3.2016. The proposal was forwarded to

the Detaining Authority on 15.3.2016 alongwith all the documents.

2 2008 ALL MR (Cri.) 774

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The Detaining Authority has stated in para 7 of its affidavit that on

15.3.2016, the Detaining Authority carefully perused the proposal

from all angles. Thereafter, the Detaining Authority directed the

Sponsoring Authority to produce the in-camera witnesses before the

Detaining Authority on 16.3.2016 i.e., the next day. On 16.3.2016,

the in-camera witnesses were presented before the Detaining

Authority. The Detaining Authority personally enquired with the in-

camera witnesses about the incidents they had stated in their

statements dated 4.3.2016 and 9.3.2016 respectively. The Detaining

Authority verified genuineness and truthfulness of the statements of

both the in-camera witnesses recorded earlier. The Detaining

Authority further verified the fear expressed by the in-camera

witnesses at the hands of the detenu. The Detaining Authority has

further stated as under:

"I say that on 16.3.2016, I once again carefully went through the proposal alongwith documents, I was subjectively satisfied that it was absolutely necessary to detain the detenu under the MPDA Act, and therefore, I have finalized the grounds of

detention and contemporaneously issued order of detention on 16.03.2016."

7. From the fact that the Detaining Authority has stated that the

Detaining Authority on 16.3.2016 "once again" carefully went

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through the proposal alongwith the documents shows that the

Detaining Authority was going through the proposal and the

documents once again on 16.3.2016. As stated earlier, the Detaining

Authority has stated that on 15.3.2016, the Detaining Authority had

carefully perused the proposal from all angles. This coupled with the

statement that on 16.3.2016, the Detaining Authority once again

carefully went through the proposal alongwith documents shows that

all the documents were perused by the Detaining Authority on

15.3.2016 itself. Therefore, on 16.3.2016 to again go through 187

pages was not at all difficult. Thus, it is seen that the proposal and

the documents accompanying them were perused by the Detaining

Authority on 15.3.2016. The only two new documents which were

generated on 16.3.2016 are verification of in-camera statements by

the Detaining Authority on 16.3.2016 at 1.20 pm and 1.25 pm. The

documents in the present case were only 187. They were already

perused by the Detaining Authority on 15.3.2016. In such case, in

the time period between 1.25pm on 16.3.2016 to 9.10pm on

16.3.2016, it cannot be said that it was not possible for the Detaining

Authority to apply her mind to all the documents on 16.3.2016 and

thereafter issue the order of detention. We are not in agreement with

the submission made by the learned Counsel for the detenu that on

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account of paucity of time, there was no time for the Detaining

Authority to properly apply her mind.

8. Thereafter, it was submitted that the last document was

generated on 16.3.2016 at 1.25pm. Hence, it was contended that

from 1.25 pm on 16.3.2016 to 9.10pm on 16.3.2016, it was not

possible for the Detaining Authority to have gone through all the

documents, formulate the grounds of detention and thereafter issue

the order of detention. It was submitted that the Detaining Authority

as the grounds of detention must have adopted the proposal given by

the sponsoring authority without applying its mind to the case.

Mrs.Ansari relied on the decision of the Supreme Court in the case of

Rajesh Vashdev Adnani vs. State of Maharashtra 3. In the said

case, it was found that the proposal of the Sponsoring Authority was

converted into the detention order only by substituting the word 'he'

by 'you'. No other change was found. It was held in such case that

this showed non-application of mind by the Detaining Authority,

hence the detention order was quashed.

9. In the present case, two documents were generated on

16.3.2016. They are the verification by the detaining authority itself of

3 2006 ALL MR. (Cri.) 1781 (SC)

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the statements of in-camera witnesses A and B. These two

documents run only into six lines each. As stated earlier, the

Detaining Authority had already scrutinised the rest of the documents

on 15.3.2016. Hence, on 16.3.2016, it was not at all difficult for the

Detaining Authority after 1.25pm of 16.3.2016, to again go through

the documents, formulate the grounds of detention and issue the

order of detention. As far as the submission that on account of

paucity of time the Detaining Authority adopted the proposal of the

sponsoring authority which cannot be countenanced is concerned,

we went through the files and found that the proposal is entirely

different from the grounds of detention. Hence, it cannot be said that

the Detaining Authority adopted the proposal given by the

Sponsoring Authority as grounds of detention.

10. Thereafter, Mrs.Ansari submitted that the detenu was released

on bail by order dated 2.3.2016. She submitted that false and

fabricated in-camera statements were prepared by the Sponsoring

Authority to see that the detenu is detained. These statements are

dated 4.3.2016 and 9.3.2016. She submitted that the subjective

satisfaction of the Detaining Authority based on such false and

fabricated documents is sham and unreal. This ground has been

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raised in ground 4(iii) of the petition. This ground 4(iii) is replied in

para 9 of the return of the Detaining Authority. It is stated therein as

under:

".. it is denied that the in-camera statements are false and fabricated only to use for putting the detenu under MPDA Act. It is further denied that the subjective satisfaction on my part,

based on such false and fabricated documents is sham and unreal and therefore order of detention is malafide, null and void. It is submitted that, during the course of inquiry, it was learnt that even though the detenu had committed several offences,

the witnesses were not willing to come forward to make any complaint openly against the detenu due to reign of terror which

was created by the detenu and his associates. It was only when assurances were given to the witnesses that their names and identifying particulars would not be disclosed, two witnesses

came forward to give their statements, these statements were recorded on 04.03.2016 and 09.03.2016. The witnesses have deposed about the incident of unauthorized sand stealing illegal transportation of sand by the detenue and atrocities they have

suffered at the hands of the detenu. I have personally verified the truthfulness and genuineness of the incidents which they

have suffered. I say that considering the incidents from various angles, I was subjectively satisfied that the activities of the detenu as a sand smuggler were prejudicial to the maintenance of public order. I issued the order of detention against the

detenu in order to prevent the detenu from further indulging in such prejudicial activities in future. I say that as a detaining authority I am justified in relying upon the said in-camera statements for issuing the order of detention. Thus there is no substance in the say of the petitioner in this para."

11. In the present case, it is seen that the in-camera statements

were inquired into by the Sub-Divisional Police officer, Chalisgaon on

13.3.2016. The in-camera witnesses were produced before the

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SDPO and he has recorded that after the witnesses were called and

the statements were verified, it came to his notice that there was

tremendous fear in the minds of the in-camera witnesses in relation

to the detenu. This shows that the SDPO had verified the statements

of the in-camera witnesses and found them to be genuine. In

addition, in this case, it is seen that the in-camera witnesses were

produced before the Detaining Authority herself. She herself made

enquiries with the in-camera witnesses and found that they were

truthful and genuine. Thus, we find no merit in the ground that false

and fabricated in-camera statements were prepared in order to

detain the detenu.

12. Ground (xii) relates to in-camera statements. Ground (xii) (a)

raised by Mrs.Ansari states that the in-camera statements are false

and the Detaining Authority in the grounds of detention has not

recorded its satisfaction about the truthfulness of the in-camera

statements, hence, the detention order is not sustainable. In the

earlier paras itself, we have reproduced what the SDPO and the

Detaining Authority have stated in relation to the statements of the in-

camera witnesses. The verification recorded by the SDPO who is

equivalent in rank to an ACP and Detaining Authority shows that they

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were satisfied about the truthfulness of the in-camera statements.

Thus, there is no substance in the contention that in camera

statements are false.

13. Thereafter, Mrs.Ansari submitted that the Detaining Authority

has to state in the grounds of detention his subjective satisfaction

about the truthfulness and genuineness of the in-camera statements.

If the subjective satisfaction is not stated in the grounds of detention,

the detention order would not be sustainable. Mrs.Ansari, to lend

force to the submission pleaded by her in ground (xii)(a), placed

reliance on the decision rendered by the Division Bench of this Court

in the case of Smt.Vijaya Raju Gupta vs. R.H. Mendonca & Ors4.

She specifically drew our attention to para 6, which is as under:

"6. There remains no doubt in the light of the law laid down by the Apex Court that in-camera statement of person/witness can be utilised by the Detaining Authority for the purpose of arriving at subjective satisfaction for

passing the order of detention. However, the Apex Court made it clear that the facts stated in the materials relied upon should be true and have a reasonable nexus with the purpose for which the order is passed. Necessary corollary, therefore is that the Detaining Authority must

be satisfied about the truthfulness of the statements made in the in-camera statements. Testing it from this touch stone, we find that neither in the detention order nor in the grounds of detention, the Detaining Authority has stated anything that he was satisfied about the truthfulness of the statements made in in-camera 4 2001 ALL MR Cri.48

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statements. In the present case the petitioner has set up specific case that in-camera statements were false and fabricated after the detenu was released on bail. The

Detaining Authority in his first affidavit filed on 13.4.2000 has only denied that false and fabricated statements

were recorded after the detenu was released on 3.7.1999. While denying that the documents were fabricated, the Detaining Authority in his aforesaid affidavit has further stated that the in camera statements

were verified by the higher grade Police Officer of the rank of A.C.P. As a matter of fact, in two subsequent affidavits, this stand has been reiterated and further statement has been made that he was subjectively satisfied that the contents of the in-camera statements

were true and genuine since it was verified by the Assistant Commissioner of Police. The English

translation of the verification made by the Assistant Commissioner of Police below the in-camera statements, reads, "my statement was translated to me

in Hindi which is in accordance with what I stated. "This means that the Assistant Commissioner of Police has only verified that the statement made by the witness was recorded as actually made by him. Therefore on the

basis of mere verification, without there being something more by way of contemporaneous

document or material more over when no such statement is made in the grounds of detention that the statements made in the in-camera statement

were believed to be true, it is very difficult to hold that the Detaining Authority was in fact subjectively satisfied that the assertions made in in-camera statements were true. The Detaining Authority has to apply his mind about the truthfulness of the assertions

made in in-camera statements which in the facts of the present case seems to have not been done which in our opinion vitiates the detention order."

(Emphasis supplied)

14. Before we deal with the decision in the case of Smt.Vijaya

Raju Gupta (supra), we would like to refer to para 16 of the decision

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of the Supreme Court in the case of Smt.Phulwari

Jagdambaprasad Phatak vs. R.H. Mendonca 5 which was relied

upon in Vijaya Gupta. Para 16 of the said decision in Smt.Phulwari

Phatak reads as under:

"Then comes the crucial question whether in-camera

statements of persons/witnesses can be utilised for the purpose of arriving at subjective satisfaction of the Detaining Authority for passing the order of detention. Our attention has not been drawn to any provision of the Act which expressly or impliedly lays down the type of

material which can form the basis of a detention order under section 3 of the Act. Preventive detention

measure is a harsh, but it becomes necessary in larger interest of 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 the power it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act.

It is sufficient if from the material available on record the Detaining Authority could reasonably feel satisfied about

the necessity for detention of the persons 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 is intended to achieve the power vested in the Detaining Authority should not be unduly restricted. It is

neither possible nor advisable to catalogue the type of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. Presumably, that is why the Parliament did not make any provision in the Act in that regard and left the matter to the discretion of the

5 2000 ALL MR (Cri.) 1503 (SC)

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Detaining Authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose with which the order

is passed."

15. There remains no doubt in the light of the law laid down by the

Apex Court in Phulwari Pathak (supra) that the in-camera

statement of person/witness can be utilised by the Detaining

Authority for the purpose of arriving at subjective satisfaction for

passing the order of detention. However, the Apex Court made it

clear that the facts stated in the materials relied upon should be true

and have a reasonable nexus with the purpose for which the order is

passed. Necessary corollary, therefore is that the Detaining Authority

must be satisfied about the truthfulness of the statements made in

the in-camera statements. However, it is nowhere stated in Phulwari

Pathak (supra) that the Detaining Authority in the grounds of

detention has to mention that he is satisfied that the in-camera

statements are true. What has been laid down in Phulwari Pathak

(supra) is that the material relied upon by the Detaining Authority

should be true and have a reasonable nexus with the purpose for

which the order is passed.

16. On careful perusal of para 6 of Vijaya Gupta (supra)

reproduced above, we find that in that case the verification of the in-

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camera statement by the ACP only read "my statement was

translated to me in Hindi which is in accordance with what I stated".

From this verification, this Court in Vijaya Raju Gupta's case, came

to the conclusion that the ACP only verified that the statement made

by the witness was recorded as actually made by the witness and

there was no verification regarding the truthfulness of the in-camera

statement. Based on this verification, this Court in Vijaya Gupta's

case observed that on the basis of such verification without there

being any contemporaneous document or material, moreover when

there is no statement made in the grounds of detention that the in-

camera statements were true it is difficult to hold that the Detaining

Authority was subjectively satisfied about truthfulness of the in-

camera statements. However such is not the situation in the present

case. In the present case, the SDPO (ACP) has verified about

truthfulness of the in-camera statements and this verification has

been furnished to the detenu. The verification clearly shows that the

in-camera witnesses were called by the ACP and it came to his

notice that there was tremendous fear in the minds of in-camera

witnesses in relation to the detenu. Thus, there are

contemporaneous documents in the present case which shows that

the truthfulness of the statements was verified.

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17. In the case of Vijaya Gupta (supra), there were no

contemporaneous documents showing that truthfulness of the in-

camera statements was verified therefore, it was observed that in

such case the Detaining Authority at least in the grounds of detention

should have recorded his subjective satisfaction about truthfulness of

the in-camera statements. Had there been contemporaneous

documents in the case of Vijaya Gupta (supra) to show that the

truthfulness of the in-camera statements was verified, the detention

order would not have been quashed. The ratio of Vijaya Gupta

(supra) is not that if in the grounds of detention no subjective

satisfaction is recorded about truthfulness of the in-camera

statements, the detention order is liable to be quashed. But the ratio

is that there should be some material to show the truthfulness of the

in-camera statements was verified. The material may be subjective

satisfaction of the Detaining Authority in the grounds of detention or it

could be by way of any contemporaneous document. However, if

both are missing then the detention order may be liable to be

quashed.

18. In relation to the absence of subjective satisfaction being

recorded in the grounds of detention about the truthfulness and

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genuineness of the statements of in-camera witness, we may state

that it is settled law that the Detaining Authority in the grounds of

detention need not record his reaction to each and every document

or material. The Supreme Court has so observed in the case of

State of Gujarat vs. Sunil Fulchand Shah reported in AIR 1988 SC

723.

19. We have examined the averments made in ground (xii)(a), the

reply to the said ground furnished in para 5 of the return of the

Detaining Authority and the decision cited by Mrs.Ansari. We make

no bones in observing that the Supreme Court has laid down that the

Detaining Authority is under an obligation to verify the truthfulness of

the incidents as narrated in the in-camera statement and to record

his satisfaction to that effect is not the ratio, which has been laid

down by the Apex Court in Phulwari Pathak's case (supra). What has

been laid down by the Apex Court therein is that the material relied

upon the detaining authority should be true and should have a

reasonable nexus with the purpose for which the order is passed. In

the instant case, paragraph 5 of the return of the Detaining Authority

wherein ground (xii)(a) has been replied to reads as under:

"5. With reference to para no.(xii) (a) of the grounds of detention, it is denied that the in-camera statements of

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two witnesses are untrue and are falsely recorded just to issue the present detention order.

It is stated that during the confidential inquiries

made into the illegal activities of the detenu, it was learnt that though the detenu had committed several offences,

the witnesses were not willing to come forward to make any complaint openly against detenu due to reign of terror created by the detenu and his associates. It was only after the assurances given to the witnesses that their

names and identifying particulars would not be disclosed and they would not be called to depose against the detenu before any forum, two witnesses shown willingness to give their statements and same were recorded in-camera on 4.3.2016 and 9.3.2016 respectively. The said in-camera

witnesses were further inquired by the Sub Divisional Police Officer, Chalisgaon on 13.2.2016. They were again

produced before me on 16.3.2016. I being a Detaining Authority had personally verified the truthfulness of the incident narrated by the in-camera witnesses in their

statements dated 4.3.2016 and 9.3.2016. I have personally verified the atrocities and fear expressed by the in-camera witnesses against the detenu and after verifying the truthfulness and genuineness of the in-camera

witnesses, I have recorded my subjective satisfaction and I have issued the order of detention against the detenu.

Thus there is no substance in the say of the Petitioner in this para."

20. Although, as a general rule, repetition should be avoided, but

sometimes it becomes necessary, as is the case here. In paragraph

5, the Detaining Authority has not only emphatically denied that the

in-camera statements are not true or falsely recorded but has

categorically asserted about the truthfulness and genuinness of the

in-camera statements. In our view, the averments made in paragraph

5 of the return of the Detaining Authority make it crystal clear that she

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was satisfied that the averments in the in-camera statement were

true and genuine.

21. We now come to the Division Bench decision of this Court cited

by Mrs.Ansari rendered in Vijaya Gupta's case (supra). We have

earlier extracted paragraph 6 of the said decision wherein, explaining

Phulwari Pathak's case, the Division Bench had held that in-camera

statements can be utilised for passing a detention order, provided the

caution given by Supreme Court in that case in terms "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" is borne in mind. After extracting the said passage from

Phulwari Pathak's case, the Division Bench has held that the

necessary corollary which flows therefrom is that the Detaining

Authority must be satisfied about the truthfulness of the statement

made in the in-camera statement. This corollary, in our view, is the

ratio laid down in the said decision of the Division Bench. The said

corollary, in our judgment, does not suggest as has been pleaded in

ground (xii)(a) that the Detaining Authority has to record its

satisfaction in the grounds of detention to the effect that the said

statements are true and genuine.

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22. What is necessary is that the Detaining Authority should be

subjectively satisfied that the in-camera statements are true and

genuine. It is not necessary that the subjective satisfaction to the

said effect has to be reflected in the grounds of detention itself. Even

if there is a contemporaneous document which shows that the

Detaining Authority was subjectively satisfied that the in-camera

statements were true and genuine, that will be sufficient. The term

"subjective satisfaction" relates to "thinking". In the present case, we

are concerned with the subjective satisfaction of the Detaining

Authority. The term 'subjective satisfaction' has a reference to the

mental element of the subject i.e., the desires, feelings or perception

of the Detaining Authority. The subjective satisfaction should be a

reasonable one and not illusory or fanciful. On going through the

grounds of detention and the documents relied upon by the Detaining

Authority, it cannot be said that the subjective satisfaction is illusory

or fanciful. In fact, we find that the subjective satisfaction is real and

rational. In the present case, as stated earlier, there is material and

contemporaneous documents before the Detaining Authority to show

that the in-camera statements were true and genuine and copies of

these documents have been furnished to the detenu. Thus, this

ground too fails.

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23. In ground (xii)(b) it is contended that the ACP has verified the

satisfaction about the identity of the in-camera witnesses and fear

expressed by them, however, the ACP has not recorded any

satisfaction about the truthfulness of the incidents as narrated by the

in-camera witnesses. The SDPO (ACP) has clearly stated in his

verification that he made enquiry about the incident with the in-

camera witnesses and on enquiry with the in-camera witnesses, it

came to his notice that there was tremendous fear in the minds of the

in-camera witnesses in relation to the detenu. This shows that ACP

was satisfied about the truthfulness of the statements of the in-

camera witnesses. This verification which is a contemporaneous

document has been furnished to the detenu. Thus it is wrong to say

that verification recorded is bad in law and the order of detention

based on these in-camera statements is liable to be quashed and set

aside.

24. Thereafter, the learned Counsel for the petitioner raised ground

xii(c). In the said ground, it is stated from the statements of in-

camera witnesses it is seen that there is a second verification after

the verification done by the ACP and as far as the second verification

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is concerned, there is no stamp to show the authority, who has

verified the in-camera statements again, hence, the detenu was

deprived of his right to make an effective representation. The law

only requires that the statements of the in-camera witnesses have to

be verified by an officer of the rank of ACP or above, which has been

done in the present case. Verification of in-camera statements by

SDPO who is equivalent in rank to ACP has been furnished to the

detenu and he is aware of the same. Hence, the absence of stamp

of the authority, who has again verified the in-camera statements,

would not deprive the detenu of the right to make an effective

representation.

25. The next contention raised by Mrs.Ansari is found in ground xi.

It is stated therein that copies of detention order, grounds of

detention and committal order were forwarded to the Advisory Board

in English, however, the detenu was not supplied the documents in

English as such he was deprived of his right to make an effective

representation as he was not aware about the contents of the English

documents, hence the detention order was vitiated. In support of her

contention, Mrs.Ansari relied on the decision of this Court in the case

of Moosa Velliat v. Asstt. Secretary, Government of

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Maharashtra6. She pointed out that in the said case, only the

translation of the documents was given to the detenu and the original

documents which were placed before the Detaining Authority were

not furnished to the detenu. In the said case, it was held that the

copy of original documents and the translation in the language known

to the detenu has to be furnished to the detenu and non-furnishing of

the original documents which were placed before the Detaining

Authority would vitiate the order of detention. Thereafter, Mrs.Ansari

relied on the decision of the Supreme Court in the case of Union of

India & anr. vs. Shantaram Gajanan Kanekar & anr. 7 In the said

case, the detenu was conversant only with Marathi language and the

Marathi version of the declaration which was supplied to the detenu

did not tally with its counterpart in English, hence, it was held that the

detention order is vitiated.

26. In the return, the Detaining Authority has categorically averred

that the original documents were in Marathi and as the detenue

stated in his statement that he has taken education in Marathi

medium and he can write and read Marathi language fluently, the

original detention order, grounds of detention, committal order were

6 1983 CRI. L.J. 1246 7 1994 SCC (cri.) 1496

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supplied to the detenu. The original documents were in Marathi,

which was a language known to the detenu, hence these documents

were furnished to him. The learned APP submitted that in the

present case, as the original documents were in Marathi, the original

documents were furnished to the detenu as he was conversant with

the said language and no translation of the original documents was

furnished to the detenu. Hence, the decision in the case of

Shantaram Kanekar (supra) would not apply because there was no

question in the present case of the original documents not tallying

with the translation. As far as the decision in the case of Moosa

Velliat v. Asstt. Secretary, Government of Maharashtra (supra), is

concerned, the ratio is that the original documents which are placed

before the Detaining Authority and which have been relied upon by

the Detaining Authority, have to be furnished to the detenu. Only

furnishing translation of the original documents is not enough. In the

present case, it is seen that the original documents were in Marathi

and these original documents were relied upon by the Detaining

Authority and copies thereof have been furnished to the detenu.

Hence, the ratio in this decision has in fact been complied with i.e.,

the original documents have been furnished to the detenu.

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27. In the present case, as the original documents were in Marathi

and were furnished to the detenu in Marathi for the sake of

convenience of the Advisory Board, the detention order, grounds of

detention and committal order were translated in English. Mrs.Ansari

submitted that this translation in English of the Marathi documents

which was furnished to the Advisory Board ought to have been

furnished to the detenu and non-furnishing affects the right of the

detenu to make an effective representation against the order of

detention, hence, the detention order is vitiated. As far as this

contention is concerned, it is a settled law that to make an effective

representation, the detenu should be furnished the detention order,

grounds of detention and the documents which were placed before

the Detaining Authority and relied upon by the Detaining Authority to

issue the order of detention. In addition, these documents have to be

furnished in the language known to the detenu. In the present case,

all the documents which were relied upon by the Detaining Authority

to issue the order of detention have been furnished to the detenu.

Any detenu would obviously make his representation based on the

documents which were relied upon by the Detaining Authority. The

Supreme Court in the case of Abdul Sattar Ibrahim Manik & Ors.

vs. Union of India & Ors., reported in AIR 1991 SC 2261 has

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observed that it is not necessary to supply the documents which are

not referred to or relied upon by the Detaining Authority to issue the

order of detention.

28. The translation of the documents in English which were

furnished to the Advisory Board for the sake of convenience were not

documents placed before Detaining Authority or documents on

which the detention order was issued. Hence, the detenu cannot

claim a right to be furnished the same nor can the detenu be heard to

contend that non-supply of such documents would affect his right to

make an effective representation against the order of detention.

29. The last ground which is raised by Mrs.Ansari is contained in

ground (vi) of the petition. It is contended therein that none of the

incidents relied upon by the Detaining Authority affect the

maintainance of public order and the incidents center only around

individuals. Mrs.Ansari submitted that grounds in the present case

are not of such magnitude as to amount to apprehending disturbance

of public order nor was there any evidence that by the conduct of the

detenu, public order was endangered or there could be reasonable

apprehension about it. Hence, the detention order would be

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vitiated. In order to appreciate this ground, it would be necessary to

look at the grounds of detention which we shall advert to a little later.

30. Mrs.Ansari relied upon para 15 of the decision of the Supreme

Court in the case of Ajay Dixit vs. State of U.P. & ors. 8 to contend

that as the incidents relied upon by the Detaining Authority do not

affect public order, the detention order would be vitiated. In the para

15, it is observed thus:

"... The act by itself is not determinate (sic determinant)of its gravity. In its quality it may not differ from another but its

potentiality maybe very different. Therefore the question whether a man has only committed a breach of law and order or acted in a manner likely to the disturbance of public order is a question of degree of the reach of the act upon society. ...."

In the said decision, reliance is placed on the decision of the

Supreme Court in the case of Arun Ghosh vs. State of West

Bengal reported in (1970) 1 SCC 98 wherein it is observed as under:

"... that the question whether a man has only committed a breach of law and order or has acted in a manner likely to

cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. .....

....A large number of acts directed against persons or individuals may total up into a breach of public order. .....

8 (1984) 4 SCC 400

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....It is always a question of degree of the harm and its effect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to

amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society

undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.

16. It is, therefore, necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintainance of public

order."

31. Ground (vi) is replied by the Detaining Authority in para 11 of its

return, which reads as under:

11. With reference to ground 6 of the petition, it is denied that, all incidents considered by me as a detaining authority do

not attract maintenance of public order as all the incidents center round only against the individuals. It is further denied that all the incidents referred in grounds of detention, the public at large were not involved which could have effected the

maintenance of public order. I further deny that two in-camera statements relied by me as a detaining authority center round law and order problem and not the public order.

It is submitted that the incidents narrated in grounds of

detention from para 5.1. to 5.4 are the cases of illegal transportation, removal, picking up or disposal of sand and its transportation, storing of sand, for personal gain of the detenu. The said offences were registered against the detenu and his associates by the Government Officers i.e., Talathi and Mandal Officers, who are the representatives of public at large. In all these cases the detenu was released on bail by the orders of

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Ld. Competent Courts. It is further submitted that all the offences referred in paragraphs 5.1 to 5.4 of the detention including statements of two in-camera witnesses, demonstrates

the prejudicial activities of the detenu whereby due to illegal and unauthorized act of the detenu, the water level of River

Girna was adversely affected resulting into scarcity of drinking and agricultural water reserved in the River Girna for the general public in the vicinity. Due to the such activities of the detenu, even tempo of life of the people was adversely

affected.

Considering the overall material placed before me by the Sponsoring Authority, I was subjectively satisfied that the activities of the detenu were prejudicial to the maintenance of

public order and in order to prevent the detenu in further indulging in such prejudicial activities in future, I issued the

order of detention against the detenue. Thus I am justified in issuing the order of detention against the detenu, hence there is no substance in the say of the petitioner in this para."

32. In the present case, it is seen that the petitioner is a sand

smuggler. He used to commit theft of sand from river Girna and if

anyone stopped him in any of his activities related to smuggling of

sand, or removing, transporting and storing of sand, he used to

threaten not only the members of public but also government officials

and on occasions, used to assault them. On account of threats given

by the detenu to the villagers in the area, people were not coming

forward to make complaints against the detenu even though his act

of stealing sand from the banks of river Girna tended to lower the

water table thereby causing conditions of drought. Witness A has

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stated that earlier, he helped revenue authority to catch the truck of

sand. The detenu then accosted the in-camera witness A and asked

him why did he help the people of Tehsil to catch his sand vehicles.

By saying so, the detenu beat witness A and threatened him that if he

is seen on the road again, he will be killed, hence, the witness did not

lodge any complaint against the detenu on account of fear in his

mind. 15 days thereafter, the detenu again accosted the witness A

and told him that he had already warned him earlier not to inform the

people of the Tehsil about stealing of sand by his truck and tractor.

The detenu told the witness that he was not obeying the warning of

the detenu and as a result of which the vehicles of the detenu were

being caught. The detenu then beat the witness. The detenu

abused the public who had gathered to see the quarrel. Thereafter,

the detenu took out an iron rod from his vehicle and tried to beat

witness A. The detenu was shouting loudly and using vulgar

language at that time. However, on account of fear, none from the

crowd came forward to help the witness. Thus, it is seen that the

public had gathered at the spot and they saw that the detenu tried to

beat witness A with an iron rod, yet, on account of fear of the detenu,

none from the crowd came forward. This shows that the act did not

only affect the witness A but it also created a fear

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in the minds of the people, who were witnessing the incident. As

such, public order was definitely affected.

33. As far as witness B is concerned, he has stated that his village

is situated 7 kms from Girad village. His village is situated on the

banks of river Girna. The sand from the river is illegally stolen by the

detenu by using trucks and tractors. This witness has stated that the

residents not only from his village but from surrounding villages like

Girad, Mandki, Bambrud and Bhadgoan are having fear and terror in

their minds in relation to the detenu. The detenu always threatens

farmers, who go to their farms at night to water the crop. The detenu

tells these farmers that are you stopping at the farms to inform about

the theft of sand being done by the vehicles of the detenu. At times,

the detenu even assaults the farmers. Witness B has clearly stated

that due to apprehension of the detenu, he and other farmers have

fear in their minds to go to their fields during night time and this has

caused heavy loss to them. The statement of witness B clearly

shows that many people of Bhadgaon Taluka know that the detenu is

indulging in committing theft of sand and the villagers are living in a

state of fear and terror on account of activities of the detenu. This

clearly shows that the activities of the detenu have not affected just

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an individual but have affected villagers of many villages. This

definitely amounts to disturbance of public order.

34. In the decision in the case of Ajay Dixit (supra), it is observed

that the act by itself may not differ from another but its potentiality

may be different. In the present case, it is seen that on account of

farmers living in a state of fear and terror due to the activities of the

detenu and due to the threats given by the detenu, they were not

attending to their fields and watering the plants at night due to which

there was great loss to the farmers. Thus, the potentiality of the act

of the detenu is such that it did not affect an individual farmer but

many farmers and hence, is such that it affects public order.

35. In the case of Arun Ghosh (supra), which was relied on in the

case of Ajay Dixit (supra), it is observed that a large number of acts

directed against the persons or individuals may total up into a breach

of public order. In the present case, it is seen that the detenu has

indulged into a large number of acts. Some of them affect public

order. Two of them clearly affect public order and as far as the other

acts are concerned, though they may be against individuals, they are

against government officials. In one of the cases, a public official has

been attacked by the detenu in the presence of other witnesses. This

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act of attacking a public official in the presence of other witnesses

would be such as to cause a feeling of fear and terror in the minds of

witnesses, who were present at the spot and hence, it affects public

order. The people in the locality who knew about the activities of theft

of sand of the detenu would see that the detenu was even

threatening government officials, hence, there would be fear and

terror in their mind that if the government officials are being

threatened, they would stand no chance against the detenu. Thus,

though some of the acts may affect individuals, the fact that they are

large number of such acts, totals up into a breach of public order. In

Ajay Ghosh (supra), it is observed that it is always a question of

degree of the harm and its effect upon the community. The farmer

community in Girad and the surrounding villages was definitely

affected in such a way that it amounted to disturbance of public

order.

36. Public Order is synonymous with peace, safety and tranquility.

It means there is absence of order involving breaches of local

significance. Sand is a mineral which is openly available on the river

banks or in the river, which is required to be preserved in the interest

of local public. It is noticed that there are grave repercussions of

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excavation and rampant theft of sand from the river banks which

affects the locals as the water table and water level goes down. This

affects the public in general and more particularly farmers. It is

noticed that sand smugglers on the basis of muscle and money

power create terror in the vicinity and they are a menace to the public

order. Thus, such new trend of offence has emerged leading to

direct threat to the public order. The detenu is a sand smuggler. The

4 CRs in which the detenu is involved pertain to theft of sand. On

account of sand smuggling, the water available is reduced. The

ecological balance is disturbed. On account of reduction in water,

there is great scarcity of water for drinking purposes and for

irrigation. There is monetary loss to farmers and other citizens in the

area. People in the area know about the activities of the detenu and

are living in a state of fear. All this amounts to disturbance of public

order. Hence to protect the interest of the public in such cases, the

legislation has amended the definition and incorporated 'Sand

Smugglers' in section 2 of the Act. The Detaining Authority has

rightly considered the situation, the nature of offences and the nature

of its effect on public order and has passed the order.

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37. In view of the above, we find no merit in the petition. Rule is

discharged.

(MRIDULA BHATKAR, J.) (V.K. TAHILRAMANI, J.)

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