Bombay High Court
Sunita W/O Raju Jadhav vs The State Of Maharashtra, Through ... on 28 September, 2016
Bench: B.P. Dharmadhikari
cwp125.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL WRIT PETITION NO. 125 OF 2016
Sunita w/o Raju Jadhav,
aged about 45 years,
occupation - Housewife,
r/o Sevadal Nagar,
Manewada, Nagpur. ... PETITIONER
Versus
1. The State of Maharashtra,
through Under Secretary,
Home Department (Special),
Mantralaya, Mumbai 32.
2. The Commissioner of Police,
Nagpur.
3. The Superintendent of Central
Prison, Nashik, (Nashik Jail). ... RESPONDENTS
Shri A.S. Band, Advocate for the petitioner.
Shri N.R. Rode, APP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
A.S. CHANDURKAR, JJ.
SEPTEMBER 28, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Band, learned counsel for the petitioner
- mother and Shri Rode, learned APP for the respondents.
2. The matter is being heard by this Court since
19.08.2016, as it pertains to preventive detention.
3. The reply affidavit in the matter has been filed by
Respondent No. 2 on 12.04.2016 and by Respondent No. 1 on
28.04.2016. Thereafter, the learned counsel for the petitioner
has placed on record copies of papers served upon the detenu
along with the detention order to demonstrate that the
statement of in-camera witness - B, allegedly recorded on
25.09.2015 and served upon the detenu varies materially with
its consideration in the impugned order of detention and
reasons supporting it dated 25.11.2015.
4. We have taken note of this contention in our order
dated 16.09.2016.
5. The facts show that in paragraph 9.2 of reasons in
support of detention order as recorded on 25.11.2015 by
Respondent No. 2, there is a mention of not only threat but also
forcibly removing an amount of Rs.3,500/- from the pocket of
that witness. It is mentioned that the passers-by, therefore, ran
away. In-camera statement served upon the detenu does not
carry these facts. Therein, it is mentioned that the detenu lifted
his own shirt and shown and exposed knife which was kept
near his waist. The witness had told him that he was not
having money, therefore, the detenu slapped him on cheek and
left. When the original papers were called for, the only papers
sent to Respondent No. 1 seeking approval were made available
for perusal of this Court. In-camera statements copy in sealed
envelop were then opened and its perusal reveal that the
statement of witness - B in sealed envelop did not match with
its copy at page 122. Notes side was not made available. This
Court, therefore, specifically asked the learned APP about the
original record.
6. It is in this background that the matter was heard
on 27.09.2016 when the learned APP again reiterated that the
records shown to this Court were original. This Court then
specifically pointed out that notes side was missing and
directed orally that P.A. to the Commissioner of Police should
be asked to remain present. Accordingly, along with the papers
on notes side, he has remained present today.
7. The learned APP has explained that the papers are
sent to the State Government for approval but notes side is not
sent to the State Government.
8.
We find the statement unacceptable. All papers
which form part of the process of detention need to be sent to
the State Government to enable it to apply its mind.
9. A perusal of notes side reveals that it runs into
about 10 pages but there is no page number anywhere. There
is no cross reference to correspondence page. The file begins
with mention of proposal as initiated by the Senior P.I. and
there is no date below the first note written by Police Inspector
of detention section. The next note is by the Deputy
Commissioner of Police (Detention) dated 15.10.2015.
10. The affidavit filed before this Court shows that the
statements made by in-camera witnesses were verified on
05.10.2015. This fact is mentioned in note prepared by the
Police Inspector but that note is undated. In due course, file
has reached the Commissioner of Police and the Commissioner
of Police has on 28.10.2015 passed a brief order after going
through notings in the file and proposal. It is concluded that
the detenu is fit person to be detained under the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug Offenders, Dangers Persons and Video Pirates Act, 1981
(hereinafter referred to as M.P.D. Act). The Commissioner of
Police has concluded his order with "hence the order be sent
with due procedure". It appears that thereafter file was sent to
M.P.D.A. Cell for further action and M.P.D.A. Cell has referred
to paragraph No. 12 of the note side i.e. the order of the
Commissioner of Police and stated that as per it, the reasons in
support of the order of detention and order of Committal to Jail
were drafted and placed for perusal and signature. The said
papers were placed before the Commissioner of Police on
25.11.2015 and notes side show that the Commissioner of
Police has signed it on 25.11.2015 i.e. after about four weeks of
his initial application of mind.
11. As this notes side made available to this Court is not
accompanied by the original papers looked into by the office of
the Commissioner of Police while ordering detention, it cannot
be specifically ascertained which statement of witness B (in-
camera) has been looked into by the Commissioner of Police.
12. The original in-camera statements do not carry any
endorsement by the Commissioner of Police showing that he
has looked into those statements. The notes side also does not
carry any mention of procedure followed by the office of the
Assistant Commissioner of Police, Kotwali, while verifying the
correctness of in-camera statements on 05.10.2015. The order
dated 28.10.2015 is not served upon the detenu.
13. In this situation, we find the affairs unsatisfactory.
It is apparent that the detenu did not receive necessary
opportunity. As the statement of witness B supplied to the
detenu has not been looked into by the Commissioner of Police,
non application of mind is also clear. We, therefore, quash and
set aside the order dated 25.11.2015.
14. Criminal Writ Petition is allowed. Rule is made
absolute accordingly. However, there shall be no order as to
costs.
JUDGE JUDGE
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*GS.
C E R T I F I C A T E
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