Bombay High Court
Dadasingh Ajabsingh Tank vs State Of Maharashtra Thr. Home ... on 7 April, 2017
Bench: B.P. Dharmadhikari
cwp36.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL WRIT PETITION NO. 36 OF 2017
Dadasingh Ajabsingh Tank,
age 32 years, occupation -
Labour, r/o Wadali Bus-Stop,
Near Shahi Medical, Amravati
Tq. & District - Amravati. ... PETITIONER
Versus
1. The State of Maharashtra
through Home Department
(Special), Mantralaya,
Madam Cama Road,
Mumbai 400 032.
2. The Principal Secretary to the
Government of Maharashtra,
Home Department (Special),
Mantralaya, Madam Cama Road,
Mumbai 400 032.
3. The Commissioner of Police,
Amravati City and Detaining
Authority, Amravati. ... RESPONDENTS
Shri V.L. Navlani, Advocate for the petitioner.
Shri A.S. Fulzele, APP for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
V.M. DESHPANDE, JJ.
APRIL 07, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Rule is made returnable forthwith and heard finally
with the consent of Shri Navlani, learned counsel for the
petitioner and Shri Fulzele, learned APP for the respondents.
2. The petitioner questions his detention vide order
dated 21.09.2016 by Respondent No. 3 under Section 3(2) of
the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers, Drug Offenders and Dangerous Persons
and Video Pirates (Amendment of 1966), Sand Smugglers and
Persons engaged in Black Marketing of Essential Committees
Act, 1981 (hereinafter referred to as 1981 Act).
3. Without prejudice to other contentions, Shri
Navlani, learned counsel has submitted that Respondent No. 3
- The Commissioner of Police, Amravati City, Amravati, has
submitted that Respondent No. 3 has not recorded subjective
satisfaction that four persons whose in-camera statements are
recorded were not ready and willing to come forward to depose
and hence it was necessary to record their deposition secretly.
He further submits that those in-camera statements are not
even looked into by respondent No. 3. The verification of in-
camera statements by the Assistant Commissioner of Police,
appears to be a mechanical process because same error has
been repeated and committed. Lastly, he points out that just a
month before the order of detention, the petitioner is alleged to
have involved in two crimes which are non-bailable and still he
was not arrested and police authorities have then recorded
atleast six reasons on both occasions for not arresting him as
the custody was then not found necessary. Therefore, the order
of detention under Section 3(2) of 1981 Act is unsustainable.
4. The learned APP supports the impugned order. He
contends that the entire material on record is looked into and
the subjective satisfaction has been reached by respondent No.
3 thereafter. He has produced before the Court original in-
camera statements to urge that verification recorded therein by
the Assistant Commissioner of Police is just and proper. He
further contends that arrest in a crime cannot be equated with
preventive detention and hence the reasons recorded earlier,
for not taking the petitioner in custody, are not relevant.
5. We have perused the original record. In three
statements of in-camera witnesses, on reverse, verification
undertaken by the Assistant Commissioner of Police appears.
There, person who has been subjected to verification is referred
to as an "informant/ witness" and the word "informant" has
been then scored off. The error or use of both words by itself
creates a doubt. If the verification was to be carried out and if
a person appears therefor, his status as a witness or an
informant was already known and hence it was not necessary
to use both the words. If there was doubt about status, both
the words should have been retained. If after correction, there
was no doubt, employing both these words again for
subsequent witness would not have been necessary. However,
in case of one witness, when verification has been carried out,
the word used is "secret witness". Thus, it appears that the
process of verification undertaken by the Assistant
Commissioner of Police was mechanical and a routine remark
has been put. The original in-camera statements with these
remarks do not appear to have been even looked into by
Respondent No. 3 and Respondent No. 3 has not put any
endorsement on in-camera statements to put on record that he
has read those statements and checked the verification exercise
carried out by the Assistant Commissioner Police. Not only this,
in the order of detention, while narrating facts, this exercise of
verification has been mentioned in paragraph 7. In paragraph
11, while concluding the order, subjective satisfaction of
detaining authority that witnesses were not ready and willing
to come forward has not been recorded at all. There is no such
mention anywhere in the order.
6. When the authorities have on 21.09.2016 found it
necessary to extern the petitioner, it is apparent that proposal
therefor may have been moved few days in advance. The
record shows that the petitioner is accused in Crime No. 217 of
2016 which is a non-bailable offence and Police Station
Frezarpura has recorded six reasons for not arresting him.
Similarly, same Police Station has in Crime No. 657 of 2016
again recorded six reasons explaining why Police station does
not find it necessary to take the petitioner in custody. First
Information Report No. 217 of 2016 is dated 22.03.2016 while
F.I.R. No. 657 of 2016 is dated 10.08.2016.
7. In this situation, we find the order vitiated and
respondent No. 3 has not looked into entire relevant material.
The necessary subjective satisfaction has not been recorded in
relation to in-camera statements and witnesses. Hence, the
order of detention dated 21.09.2016 is hereby quashed and set
aside. The detenu be released forthwith if his custody is not
required in any other matter. Criminal Writ Petition is disposed
of. Rule is made absolute accordingly. However, there shall be
no order as to costs.
JUDGE JUDGE
******
*GS.
