Tushar S/O Rajansingh Rajput vs The State Of Maharashtra And ...
2017 Latest Caselaw 1367 Bom

                                                  1698.2016 Cri.WP.odt
                                    1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO.1698 OF 2016  


          Tushar s/o. Rajansingh Rajput,  
          Age 33 years, Occ. Business,  
          R/o. House No.853, Pensionpura,  
          Chavani, Aurangabad, 
          Tal. & District Aurangabad.       PETITIONER 

                     VERSUS 

          1.       The State of Maharashtra,  
                   Through Principal Secretary,  
                   Home Department,  
                   Mantralaya, Mumbai.  

          2.       The Secretary,  
                   Home Department [Special],  
                   2nd Floor, Main Building,  
                   Mantralaya, Mumbai-32.  

          3.       The Commissioner of Police,  
                   Aurangabad                  RESPONDENTS 

                               ...
          Mr.S.S.Thombre, Advocate for the Petitioner 
          Mr.M.M.Nerlikar, APP for Respondent Nos.1  to 
          3 / State
                               ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 23.03.2017 Pronounced on : 03.04.2017

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JUDGMENT: (Per S.S.Shinde, J.):

1. This Writ Petition is filed with

following prayer:

B) By issuing writ of certiorari or any

other writ, order or directions in

the like nature, the order passed by

the respondent no.3 - Commissioner

of Police, Aurangabad dated

4.06.2016 and the order of

confirmation passed by the Advisory

Board dated 14.07.2016 may kindly be

quashed and set aside;

2. The learned counsel appearing for

the petitioner restricted his arguments

confined to the ground nos. IX to XVII, which

were inserted by way of amendment as per the

leave granted by this Court on 14th March,

2017. The learned counsel submits that, there

was no period of detention mentioned in the

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order dated 4th June, 2016, passed by the

Detaining Authority, and the State Government

while confirming the order of detention

extended the period of detention for the

period of one year and while doing so has not

recorded any reasons. Therefore, on this

ground alone, the impugned order is required

to be quashed and set aside. In support of

the aforesaid contention, he pressed into

service judgment of the Supreme Court in the

case of Commissioner of Police and anr. Vs.

Gurbux Anandram Bhiryani1 and submits that,

the Supreme Court in the said Judgment has

observed that, the order of detention is bad

on the ground that period of detention has

not been indicated by the detaining

authority.

3. The learned counsel appearing for

the petitioner submits that, the detaining

authority, while passing the impugned order,

1 MANU/SC/0214/1987

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neither assigned any reasons nor arrived at

the subjective satisfaction, and in

particular disturbance to the public order

due to the alleged prejudicial activities of

the petitioner. He further submits that, the

order of Detaining Authority shows that

reliance has been placed specifically on in-

camera statements of the witnesses 'A', 'B',

'C' and 'D', however, copies of the in-camera

statements of the witnesses supplied to the

petitioner have been annexed to the Petition

which do not contain verification. He submits

that in view of the law laid down by the

Bombay High Court Bench at Principal Seat, in

the case of Swapnil Sanjay Tahsildar Vs.

District Magistrate & Ors.2, it is necessary

that there should be verification made of the

in-camera statements and the copies of the

verification needs to be furnished to the

petitioner detenu.

2 2013 All.M.R. [Cri.] 16

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It is further submitted that, the

dangerous person is defined as per Section 2

(b-1) of the Maharashtra Prevention of

Dangerous Activities of Slumlords,

Bootleggers, Drug-Offenders, Dangerous

Persons and Video Pirates Act, 1981 [for

short 'MPDA Act']. However, in the present

case, the Detaining Authority has failed to

prove that the petitioner is dangerous person

within the meaning of Section 2 [b-1] of the

MPDA Act. He further submits that the

petitioner belongs to 'Rajput Community', and

he understands Hindi language but the copy of

the order along with the proposal which was

supplied to the petitioner is in English and

Marathi, and therefore, the petitioner could

not submit his representation properly as he

does not understand either Marathi or

English. It is submitted that, there was no

any verification of the in-camera statements

recorded by the authority, and therefore, on

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that ground also, the impugned order deserves

to be quashed and set aside. In support of

the aforesaid contention, he invites our

attention to the judgment of the Division

Bench of the Bombay High Court at Principal

Seat in the case of Yuvraj Ramchandra Pawar

Vs. Ramaswami N.(Dr.) & Ors.3, also the

judgment of the Bombay High Court, Bench at

Nagpur in the case of Anil s/o Damodhar

Paunipagar Vs. State of Maharashtra & Ors.4,

and the judgment of the Bombay High Court at

Principal Seat in the case of Jay Vs. The

Commissioner of Police Pune and Ors.5, and

also the judgment of the Bombay High Court,

Bench at Aurangabad in the case of Deepak Vs.

The Commissioner of Police, Pune City and

ors. in Criminal Writ Petition No.1237 of

2016, decided on 19.12.2016.

4. It is submitted that, there is no

3 2016 All M.R. [Cri.] 930 4 2000 [2] Mh.L.J. 400 5 2015 All M.R. [Cri.] 4437

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live link or nexus between the crimes

registered against the petitioner and

definition of the dangerous person as

referred in Section 2 [b-1] of the MPDA Act.

It is submitted that, it is only the person,

who commits offences habitually, can be

called as 'dangerous person'. However, in the

present case, the authority has relied upon

the alleged solitary incident of registration

of Crime No.189/2016 for the offence

punishable under Sections 376, 354 (A) (D),

323, 504, 506, 34 of the IPC r/w. Section 67

of the Information Technology Act, 2000,

dated 21st April, 2016, against the

petitioner, and wrongly treated the

petitioner as habitual offender. Therefore,

the learned counsel appearing for the

petitioner submits that, the petition

deserves to be allowed.

5. On the other hand, the learned APP

appearing for respondent - State relying upon

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the affidavit-in-reply of respondent no.3

made following submissions:

6. That the petitioner is not entitled

to challenge the order of detention on the

basis of grounds on which the detention has

been effected, in view of Section 5-A of 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,

and therefore, the petition deserves to be

dismissed at the admission stage itself, and

accordingly, it may kindly be dismissed.

7. That sufficiency or insufficiency of

the grounds of detention cannot be a subject

matter on the basis of which the petition

could be entertained under Article 226 and

227 of the Constitution of India. It is

subjective satisfaction of the detaining

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authority that the acts of the detenu are

prejudicial to the maintenance of public

order and with a view to prevent him from

committing such acts, detention is necessary,

are the relevant considerations. That the

petitioner is a 'Dangerous Person' as defined

in the said Act and he has committed serious

offences i.e. assault, outraging the modesty

of woman, rape, dacoity, criminal

intimidation, act of threatening common

people, prostitution, etc. He has created

reign of terror in the locality of MIDC Waluj

and adjoining areas and disturbed the peace

over there. Due to his criminal and dangerous

activities, the persons residing in the

jurisdiction of Police Station MIDC Waluj and

adjoining areas remained under constant fear

and terror. Therefore, the detaining

authority arrived at subjective satisfaction

that the petitioner's criminal and dangerous

activities are prejudicial to the maintenance

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of public order in the above localities and

adjoining areas. Learned APP invites our

attention to the para 5 of the affidavit-in-

reply and submits that, there are as many as

four offences are registered against the

petitioner in Jawaharnagar Police Station,

Kranti Chowk Police Station, Satara Police

Station and MIDC Waluj Police Station,

respectively. He further submits that, the

chapter case was also registered against the

petitioner in Satara Police Station and

preventive action was taken against him. He

submits that, in spite of registration of the

aforesaid offences, the petitioner has not

controlled his alleged activities; on the

contrary his illegal and dangerous activities

are showing ascending trend. Even preventive

action taken under the Code of Criminal

Procedure failed to curb his prejudicial

activities.

8. That, after considering the

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seriousness of the above said crimes, the

Police Inspector, MIDC Waluj Police Station,

Aurangabad, conducted confidential enquiry.

In an enquiry, it is revealed that due to

petitioner's fear, nobody is willing to give

statement openly against him. On an assurance

to the witnesses that, their names and

identity, and other particulars would be kept

secretly, and they will not be called upon to

give evidence against the petitioner in any

court or any other forum, witnesses agreed to

give their statements. The Police Inspector,

MIDC Waluj Police Station accordingly

recorded the statements of the witnesses

'A', 'B', 'C' and 'D', in-camera. After

completion of confidential inquiry, the

Police Inspector of Police Station MIDC Waluj

submitted proposal to the Detaining Authority

i.e. respondent no.3, for taking action under

Section 3 [1] of the MPDA Act, 1981, through

concerned ACP Cantonment Division and DCP

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[Zone-1] at Aurangabad. The Deputy

Commissioner of Police [Zone-1], Aurangabad,

had verified the witnesses A, B, C and D and

submitted report to respondent no.3. In the

said report, the Deputy Commissioner of

Police [Zone01], Aurangabad has mentioned

that the facts given in the statements and

apprehension expressed by the witnesses 'A',

'B', 'C' and 'D', is true and reasonable.

After perusing the said report, respondent

no.3 was satisfied that, the facts given in

the statements and apprehension entertained

by the witnesses 'A', 'B', 'C' and 'D', is

true and reasonable.

9. In view of the offences registered

against the petitioner and the statements of

witnesses the detaining authority is

convinced that the petitioner is a 'dangerous

person', and the people residing within the

jurisdiction of Police Station, referred

herein above in para 7, and the residents

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residing in adjoining locality are facing

serious hardship and finding it difficult to

live in the area or to pass through the area

due to fear and terror created by the

petitioner. Respondent no.3 was subjectively

satisfied that if petitioner's criminal and

dangerous activities are not prevented, the

petitioner is likely to indulge on wide scale

in further dangerous and criminal activities,

which would be prejudicial to the maintenance

of public order even in future. Therefore,

after arriving at subjective satisfaction,

respondent no.3 passed the detention order on

4th June, 2016, and as the petitioner was in

judicial custody in Police Station MIDC

Waluj, Aurangabad in Crime No.189/2016, for

the offence punishable under Sections 376,

354 [A], 354 [D], 323, 504, 506, 34 of the

IPC and 67 of the Information and Technology

Act, 2000, after obtaining prior permission

of the concerned Court, the detention order

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was served on the petitioner on the same day.

Thereafter, the petitioner has been detained

in Central Prison, Aurangabad. The

information about his detention and place of

detention was given to his brother namely

Atish Rajansingh Rajput on 4th June, 2016. A

grounds of detention and other relevant

papers along with its Marathi translation

were served upon the petitioner on 7th June,

2016. The detention order has been approved

by the State Government, vide its order No.

MPDA-0616/CR-111/Spl-3B dated 9th June, 2016.

The Advisory Board constituted under the said

Act heard the petitioner on 7th July, 2016.

After receipt of the opinion from the

Advisory Board, the detention order has been

confirmed by the State Government, vide its

order No.MPDA-0616/CR-111/Spl-3B, dated 14th

July, 2016. All the mandatory provisions have

been completed in time as stipulated in the

said Act.

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10. It is further submitted that, the

petitioner is a 'dangerous person' as defined

in Section 2 [b-1] of the MPDA Act, 1981, as

he has committed serious offences i.e.

assault, outraging the modesty of woman,

rape, dacoity, criminal intimidation, act of

threatening common people, and indulging into

encouraging prostitution. It is further

submitted that, it is not correct factual

position that the petitioner was released on

bail in Crime NO.189/2016 under Section 376,

354 [A], 354 [D], 323, 504, 506, 34 of the

IPC and Section 67 of the Information and

Technology Act, 2000. As a matter of fact, at

the time of passing the detention order, the

petitioner was in judicial custody in Police

Station MIDC Waluj, Aurangabad, in Crime No.

189/2016 under Sections 376, 354 [A], 354

[D], 323, 504, 506, 34 of the IPC and Section

67 of the Information and Technology Act,

2000, and after obtaining prior permission of

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the concerned Court, the detention order was

served on the petitioner on the same day.

Thereafter, he has been detained in Central

Prison, Aurangabad. It is not correct to say

that the order passed under the MPDA Act is

unjust, arbitrary and illegal and violate the

fundamental rights guaranteed to the

petitioner under Articles 19 and 21 of the

Constitution of India. As a matter of fact,

the petitioner committed offences under

Chapter XVI and XVII of the IPC, and said

acts have become a serious threat and source

of danger to the lives of law abiding and

peace loving citizens and disturbed the

public order in the jurisdiction of Police

Station MIDC Waluj and adjoining areas. There

is strict adherence to relevant legal

provisions before passing the order of

detention.

11. The learned APP appearing for

respondent - State also invites our attention

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to the affidavit-in-reply filed by respondent

no.1 and submits that, respondent no.1 has

confirmed the order of detention on 14th July,

2016. He also invites our attention to the

further affidavit-in-reply filed on behalf of

respondent no.3 and submits that on 4th June,

2016, the detention order has been served on

the petitioner in Central Prison, Aurangabad,

and at that time the statement of the

petitioner was recorded before the Police

Inspector of Police Station MIDC Waluj,

Aurangabad, and Jailor of the Central Prison,

Aurangabad. The petitioner stated in his

statement that, he has studied upto 10th

Standard in Marathi medium at Milind School,

Aurangabad, and thereafter, he studied up to

12th Standard in Arts Faculty in Deogiri

College at Aurangabad. He also stated that he

learnt Marathi, English and Hindi languages

during his studies. Therefore, he requested

that the grounds of detention and other

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relevant documents should be supplied in

Marathi language. Therefore, the grounds of

detention and other relevant documents were

served on the petitioner along with its

Marathi translation on 7th June, 2016 in time.

It is further submitted that, the Deputy

Commissioner of Police, Zone-I, Aurangabad,

has verified the truthfulness of in-camera

statements of witnesses 'A', 'B', 'C' and

'D'. The mandate of verification is duly

complied in the present case and the same is

reflected at the bottom of statements of

these witnesses.

12. The learned APP invites our

attention to the original record and submits

that, the Commissioner of Police after

recording the subjective satisfaction and

also verification of the statements of the

witnesses 'A', 'B', 'C' and 'D' has passed

the impugned order of detention. Therefore,

the contention of the learned counsel

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appearing for the petitioner that the

detention order is passed without arriving

at subjective satisfaction and without

verification of in-camera statements deserves

no consideration, and the said contention

deserves to be rejected. He invites our

attention to the judgment of the Supreme

Court in the case of T. Devaki Vs. Government

of Tamil Nadu6 and submits that, in the facts

of that case it was held that non-mentioning

of period of detention is not fatal. He

submits that the Supreme Court in the said

judgment has made reference of number of

earlier pronouncement and taken a view that

non mentioning of the period of detention is

not fatal. Therefore, the learned APP

appearing for the respondent - State submits

that the petition may be dismissed.

13. Heard the learned counsel appearing

for the parties at length. With their able

6 1990 [2] SCC 456

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assistance, we have perused the grounds taken

in the Petition, annexures thereto, grounds

of detention, the impugned order, affidavit-

in-reply of respondent no.1, affidavit-in-

reply filed by respondent no.3, further

affidavit-in-reply of respondent no.3, and

the original record made available for

perusal by respondents. So far as first

ground raised by the petitioner that the

period of detention is not mentioned in the

order dated 4th June, 2016 passed by the

Detaining Authority, and further no reasons

assigned by the State Government to make

order operative for one year, and therefore,

the order of detention deserves to be quashed

is concerned, the Hon'ble Supreme Court in

the case of T. Devaki [cited supra], after

placing reliance upon the earlier judgments

of the Supreme Court wherein same issue was

involved, has taken a view that, an order of

detention is not rendered illegal merely

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because it does not specify the period of

detention. Para 13 of the said Judgment reads

thus:

[13] This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of this Court in Ujagar Singh v. State of Punjab (1952) 3 SCR 756 : (AIR 1952 SC

350), while considering validity of detention order made under Section 3 of the Preventive Detention Act 1950 held that non-specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid. In Suna Ullah Butt v. State of Jammu and Kashmir (1973) 1 SCR 870 : (AIR 1972 SC 2431), validity of detention order made under Jammu and Kashmir Preventive Detention Act 1964 was under challenge on the ground that the State Government while

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confirming the detention order under Section 12 of the Act had failed to specify the period of detention. The Court held that since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention. In Suresh Bhojraj Chelani v. State of Maharashtra (1983) 1 SCC 382 : (AIR 1983 SC 181), while considering the validity of the detention order made under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected similar submission made on behalf of the detenu that order of detention was vitiated as the Government had failed to mention the period of detention while confirming the order of detention. The Court held that the COFEPOSA act did not require the detaining authority to mention the period of detention in the order of

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detention. When, no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.

14. The second ground raised by the

petitioner is that, the Detaining Authority

did not arrive at subjective satisfaction to

the effect that the petitioner is acting in a

manner prejudicial to the maintenance of the

public order and with a view to prevent him

from acting such prejudicial manner, it was

necessary to detain the petitioner by passing

an order under Section 3 [1] of the MPDA Act,

1981. We have carefully perused grounds of

the detention. In para 3, there is reference

to the Crime No.115/2013 registered with

Jawaharnagar Police Station for the offence

punishable under Section 395 of the IPC.

There is also reference to Crime No.117/2015,

registered with Kranti Chowk Police Station,

for the offence punishable under Sections

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324, 323, 504, 506 r/w.34 of the IPC, and

also crime No.3019/2015 registered with

Satara Police Station for the offence

punishable under Sections 3, 4, 5 of the

Immoral Traffic [Prevention] Act, 1956. In

all these three cases, the trial is pending.

There is another Crime No.189/2016 registered

with MIDC Waluj Police Station, for the

offence punishable under Sections 376, 354

[A], 354 [D], 323, 504, 506, 34 of the IPC

r/w. Section 67 of the I.T. Act, 2000, which

is pending for investigation. There is also

mention of the chapter case, however, it

appears that, the said proceedings are

already dropped. In the ground of detention,

each of the afore-mentioned crimes have been

mentioned. The details in respect of the

allegations in the said FIR, and the

subsequent orders passed by the Court of

Judicial Magistrate, Aurangabad, has also

been mentioned. Likewise in respect of other

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crimes also, separate grounds are mentioned,

with details about the said crime numbers and

subsequent developments happened after

registration of that crime. On careful

perusal of the allegations in the FIR being

Crime No.117/2015 registered with Kranti

Chowk Police Station, Crime No.3019/2015

registered with Satara Police Station and

Crime No.189/2016 registered with MIDC Waluj

Police Station and also chapter case of which

proceedings are subsequently dropped, does

have nexus with passing of order of detention

by the Detaining Authority. Apart from the

afore-mentioned three crimes and chapter

case, in-camera statements of the witnesses

'A', 'B', 'C' and 'D' are also recorded. On

careful perusal of the original record, we

find that, those statements are verified by

the Deputy Commissioner of Police, Zone-I,

Aurangabad City and it is mentioned in side

margin of every in-camera statements that,

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"verified the statement of witness, narrating

the same as stated in statement and seems to

be under threat". Upon careful perusal of the

original record, we find that, there is

detail note written by the Commissioner of

Police wherein it is written that, DCP,

Zone-1 has personally verified the statements

of witnesses 'A', 'B', 'C' and 'D'. After

going through the record, we have noticed

that, the Commissioner of Police has recorded

subjective satisfaction that, the facts given

in the statement of the witnesses and

apprehension expressed is true and

reasonable. Therefore, before passing the

impugned order of detention, all procedural

formalities have been scrupulously followed,

and after conscious application of mind, the

Commissioner of Police arrived at subjective

satisfaction and then the order of detention

has been passed. Upon perusal of the

affidavit-in-reply filed by respondent no.1,

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it is clearly mentioned that the State

through Department of Home has confirmed the

order of detention.

15. So far as third ground agitated by

the learned counsel appearing for the

petitioner that the Detaining Authority has

failed to prove that, the petitioner is

dangerous person within the meaning of

Section 2 [b-1] of the MPDA Act is concerned;

the petitioner is involved in as many as four

offences; which are registered by way of

separate crime numbers, and also in-camera

statements of four witnesses have been

recorded, and on the basis of said cogent and

sufficient material, the Commissioner of

Police arrived at subjective satisfaction

that the petitioner is dangerous person and

he is acting in a manner prejudicial to the

maintenance of the public order. Therefore,

the petitioner's assertion that, he cannot be

termed as 'dangerous person', deserves no

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consideration. The material brought on record

by the respondents unequivocally indicated

about the involvement of the petitioner in

habitually committing offences punishable

under Chapter XVI and XVII of the Indian

Penal Code.

16. Fourth ground taken by the

petitioner is that the petitioner belongs to

'Rajput Community', and he understands Hindi

language and does not understand English and

Marathi languages, and the respondent

authority has supplied the copies of the

documents in Marathi, and therefore, the

petitioner could not submit his

representation effectively and properly.

Upon perusal of the original record

maintained by the office of the Detaining

Authority, we find that the statement of the

petitioner is recorded on 4th June, 2016,

which is signed by him, and also by the

respondent authorities wherein he has stated

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that, he studied up to 10th Standard in

Marathi medium at Milind School, Aurangabad,

and thereafter, he has passed out 12th

Standard from Arts Faculty, and he studied in

Marathi, English and Hindi languages and he

is conversant with all three languages. In

that view of the matter, there is no

substance in the aforesaid fourth ground

agitated by the learned counsel appearing for

the petitioner.

17. So far as fifth ground i.e. amended

ground No. XIII, it is stated that there was

no proper verification of the in-camera

statements recorded by the authority, and

there is endorsement made subsequently. As

already observed, the Deputy Commissioner of

Police, Mr. Vasant Pardeshi, has verified the

said statements and the Commissioner of

Police has also gone through the said

statement and subjectively satisfied that the

facts given in the statement of the witnesses

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and apprehension expressed is true and

reasonable.

18. In the light of the discussion in

the foregoing paragraphs, we are of the

considered view that, the order impugned in

this Petition needs no interference, hence,

the Petition is devoid of any merits, and the

same stands rejected.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC