Bombay High Court
Rajkumar @ Anda S/O. Jaglal ... vs State Of Maharashtra Thr. Home ... on 13 April, 2017
Bench: B.P. Dharmadhikari
wp999.16.J.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.999 OF 2016
Rajkumar @ Anda s/o Jaglal Jaiswal
Age - Major, Occupation - Pvt.
R/o Shivarpan Nagar, Nalwadi,
Tahsil & District Wardha. ....... PETITIONER
...V E R S U S...
1] State of Maharashtra,
through Home Department (Special),
2nd Floor, Main Building, Mantralaya,
Mumbai-32.
2] District Magistrate,
District Wardha.
3] Police Station Officer,
Police Station, Wardha City,
District Wardha. ....... RESPONDENTS
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Shri A.M. Jaltare, Advocate for Petitioner.
Shri A.S. Ashirgade, APP for Respondent Nos.1 to 3.
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CORAM: B.P. DHARMADHIKARI AND
V.M. DESHPANDE, JJ.
th APRIL, 2017.
DATE: 13
ORAL JUDGMENT: (PER B.P. Dharmadhikari, J.)
1] The petitioner a detenu assails order of detention
dated 12.09.2016 passed by respondent No.2 under Section 3 of
wp999.16.J.odt 2/9
the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug-Offenders, Dangerous Persons and Video
Pirates, Sand Smugglers and Persons Engaged in Black-Marketing
of Essential Commodities Act, 1981. (hereinafter referred to as
1981 Act). This Court had issued notice on 23.12.2016 for final
disposal. It was made returnable on 19.01.2017.
2] On 29.03.2017 matter was listed before this Bench
and perusal of original records was felt essential. Hence, matter
came to be adjourned. It has been heard today finally.
Accordingly, we issued Rule and made it returnable forthwith by
consent of parties.
3] Advocate Jaltare, appearing for petitioner has in
addition to other points, submits that out of total 28 cases
mentioned in chart forming of proposal, petitioner has been
acquitted from 22 cases. Only 4 cases out of remaining 6 pending
were relevant and have been looked into by the authority, but
then acquittal from 2 cases has been overlooked. He further
submits that in offence mentioned at Sr. No.25 i.e. Crime
No.0014/2013 of Police Station Deori, petitioner had been
granted bail by this Court in Criminal Application No.169 of 2014,
wp999.16.J.odt 3/9
after noticing that identity of present petitioner as Driver of the
Car has not been established. This important observation has also
been lost sight while passing the order of detention.
4] Inviting attention to in-camera statement of witness-A
dated 24.08.2016 and in-camera statement of witness-B dated
25.08.2016, he urges that portion removed from it to suppress
identity of the concerned witnesses in fact rendered entire
document useless. According to him, content remaining therein do
not make any sense and hence, an opportunity to effectively
defend himself stands negated. He relied upon the decision of this
Court in the case of Shri Abdul Rehman Abdul Wahid Vs. Shri D.N.
Jadhav & Ors. reported in 2008 ALL MR (Cri) 2497, to buttress his
submission that supply of such incomplete document tantamounts
to non-supply thereof and therefore, vitiates the order of
detention. Lastly, the verification of in-camera statements
allegedly done by S.D.P.O. is shown to this Court in order to
demonstrate that those in-camera statements or then verification
thereof by S.D.P.O. has not been scrutinized by the respondent
No.2-Detaining Authority personally and there is no subjective
satisfaction in that respect. Support is being taken of judgment
dated 01.02.2016 delivered by this Bench in Criminal Writ
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Petition No.768 of 2015.
5] In addition he points out that petitioner has received
two orders of detention signed in original and on same date.
He states that there can be only one order of detention.
6] Learned APP has from records received by him,
produced an envelope (seal) containing original in-camera
statements. He submits that perusal of order of detention reveals
that in paragraph 4 (E) those statements are looked into then
other material has also been considered and thereafter
conclusions are recorded in paragraph 5. He invites attention of
the Court to the fact that if, the portion removed from copies of
in-camera statement supplied to the petitioner are retained,
identity of witness will be immediately known and purpose of
recording those statements secretly therefore, will be defeated.
He contends that documents supplied contained necessary details
in order to enable petitioner to understand the purpose thereof
and hence, opportunity to effectively defend has not been denied.
He further contends that entire history has been looked into and
in the light of in-camera statements, the other material as
mentioned in proposal, subjective satisfaction has been reached.
The chart of previous police reports contained in proposal is
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pressed into service to urge that last of offence mentioned therein
i.e. 0334 of 2016 is committed on 09.06.2016 and investigation
therein is still pending. In-camera statements recorded bring on
record subsequent events and hence live link is established.
He therefore, argues that if total material on record is looked into,
alleged omission to consider the observation of this Court while
granting bail, not expressly mentioning the fact of acquittal from
two cases or use of in-camera cases do not in any way vitiate the
impugned order. Order shows proper application of mind and it is
neither perverse nor erroneous. He therefore, requests the Court
to dismiss the writ petition.
7] We have perused case papers with the assistance of
both the counsels. In-camera statements served upon petitioner
24.08.2016 and 25.08.2016. The said statements in margin carry
remark by S.D.P.O., which translated will read "verified, speaks
correctly as written". The original produced before us carry
signature of in-camera witnesses obviously those signatures could
not have been and are not communicated to petitioner.
However, when original of in-camera statement dated 24.08.2016
i.e. of witness-A was perused by us, it became clear that signature
was placed on it leaving some space after statement and not put
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as per alignment of the page. Its orientation is not as is expected
even after making allowance for the education of said person as
disclosed. He was required to leave his education, but then
unnecessary gap as blank space between statement and signature
gives some other impression.
8] In insofar as statement of witness-B is concerned,
orientation of his signature again gives similar impression. We are
constrained to comment on this because original in-camera
statements do not carry any endorsement by Detaining Authority
to show that it has perused the same. There is no mention that the
Detaining Authority has personally discussed the position or
statements with S.D.P.O. who has verified the same. As such
material on record falls short to show application of mind by
Detaining Authority to cardinal aspect necessitating recording of
in-camera statements.
9] Impugned order in paragraph 4 (E) only mentions
in-camera statements as a fact. The actual application of mind
starts from paragraph 5 in order in English language. In that
paragraph while recording subjective satisfaction, no observation
on correctness of procedure followed by S.D.P.O appears. There is
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no observation that Detaining Authority was satisfied that
witnesses-A and B or witnesses in general were not willing to
come forward and depose because of fear of petitioner.
The Detaining Authority has not put any thing on record to enable
us to gather that it was alive to the facet, mentioned, supra.
10] Perusal of in-camera statement of witness-A reveals
that detenu was in contact with this witness and had offered him
some amount in consideration. This witness has not fallen prey to
his threats. Statement of witness-B is again on same line.
These witnesses do not speak of any specific incident or any event
of any particular date. Thus, in-camera statements are general in
nature.
11] Advocate Jaltare has pointed out that in impugned
order, there is a finding in paragraph 5 that petitioner has
encouraged young illicit liquor seller to indulge themselves in
illegal activities. This practice or attitude of the petitioner was not
appearing in proposal. Line before it in the impugned order states
that petitioner is fully engaged in transportation and selling illicit
liquor. In view of contention that there is also an order in Marathi
on record, the same was perused and in Marathi order, in
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paragraph 5 following lines appear.
ßvki.k o/kkZ ftYg;kP;k yxrP;k ftYg;krqu voS/kjhR;k nk#ph
okgrqd o fodzh dj.;kr ljkbZr >kys vlqu lnjP;k voS/k
dkekr vki.k brj ;qodkaukgh R;kr xqjQkVqu xqUgsxkjh fo'okr
<dyys vkgs-Þ
Thus, in Marathi order it is claimed that the petitioner has
developed expertise in illegal transport and sale of liquor from
districts adjacent to Wardha District and he has also pushed youth
into it and in world of criminals.
12] We need not observe more in this connection.
There can be only one original order and it can be either in
English or Marathi and its translation thereafter can be certified as
true translation.
13] In present matter, as we find that in-camera
statements have been mentioned in impugned order and on that
basis an order of detention has been passed, in the absence of
proper verification by Detaining Authority and subjective
satisfaction by it in that respect, on all relevant facet, the order is
unsustainable. There is no subjective satisfaction by Detaining
Authority either on correctness of verification exercise carried out
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by S.D.P.O. or on fear in mind of in-camera witnesses and the
atmosphere of fear and terror. In view of this finding other
contentions raised by Advocate Jaltare are kept open and will be
looked into in more appropriate facts.
14] Accordingly, order of detention dated 12.09.2016 is
hereby quashed and set aside. The detenu be set free immediately,
if his custody is not required by police in any other matter.
The criminal writ petition is allowed. Rule is made absolute in
aforesaid terms with no order as to costs.
JUDGE JUDGE
NSN
