Bombay High Court
Lakhan Jambu Chougule @ Dayawan ... vs The District Magistrate And Ors on 13 April, 2017
Bench: V.K. Tahilramani
jdk 10.crwp.4362.16.j.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI. WRIT PETITION NO. 4362 OF 2016
Lakhan Jambu Chougule @ ]
Dayawan Dada, Age 26 years ]
Residing at Juni Wadar Galli ]
Pandharpur, Taluka Pandharpur ]
Dist. Solapur ].. Petitioner
Vs.
1. The District Magistrate, Solapur ]
]
2. The State of Maharashtra ]
(Through Addl. Chief Secretary ]
to Government of Maharashtra ]
Mantralaya, Home Department, ]
Mantralaya, Mumbai) ]
]
3. The Superintendent, ]
Yerawada Central Prison, ]
Pune. ]..Respondents
....
Mr. Udaynath Tripathi Advocate for Petitioner
Mrs. M.H.Mhatre, A.P.P. for the Respondents
....
CORAM : SMT.V.K.TAHILRAMANI &
M.S.KARNIK, JJ.
DATED : APRIL 13, 2017
jdk 10.crwp.4362.16.j.doc
ORAL JUDGMENT [ PER SMT. V.K.TAHILRAMANI,J.] :
1 Heard both sides.
2 The petitioner / detenu - Lakhan Jambu Chougule has
assailed the detention order dated 21.10.2016 passed against
him by the Respondent No.1 i.e. District Magistrate, Solapur.
The said detention order has been passed in exercise of powers
under Section 3(1) 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 (Mah.
Act No. LV of 1981), (Amendment - 2009), (Amendment -
2015) (hereinafter referred to as "MPDA Act"). The order of
detention has been passed on the basis of three incamera
statements of witnesses "A", "B" and "C". The order of
detention, grounds of detention along with accompanying
documents were served on the detenu on 21.10.2016.
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3 Though a number of grounds have been raised in this
petition, Mr. Tripathi has urged only one ground before us which
is raised in ground 5(b) of the petition. The said ground briefly
states that in the opening para of the grounds of detention, it is
clearly stated that the detaining authority is hereby
communicating to the detenu the grounds as mentioned in
paragraph 4(a) to 4(c) on which the order of detention has been
issued against the detenu. These paras refer to 3 incamera
statements. It is thus, clear from the opening para that the
detaining authority has only relied on the 3 incamera
statements to issue the order of detention and he had not
relied on any other material to issue the order of detention.
However, paragraph 7 of the grounds of detention where the
subjective satisfaction of the detaining authority is stated, is as
under:
"After considering the offences mentioned in Para
No.3(1) to 3(12) which has been committed by you, I
am of the opinion that there will be harm to public
jdk 10.crwp.4362.16.j.doc
order due to your criminal activity. Therefore, it is
necessary that you should be detained under the
provisions of M.P.D.A. Act, 1981".
4 Mr. Tripathi submitted that the detaining authority in
the first paragraph of the grounds of detention has specifically
stated that the detention order has been issued by him on the
basis of the 3 incamera statements, however, in the subjective
satisfaction expressed by the detaining authority in paragraph 7
of the grounds of detention, there is no reference at all to the
incamera statements but there is a reference only to offences
mentioned in paragraphs 3(1) to 3(12). In para 7, it is
categorically stated that it is necessary to detain the detenu in
view of the offences mentioned in para 3(1) to 3(12). This
means that the detention order was issued on the basis of
offences mentioned in paras 3(1) to 3(12). Paragraph 7 where
the subjective satisfaction is expressed, clearly shows that the
detaining authority found it necessary to detain the petitioner -
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detenu on the basis of the facts which are mentioned in the
grounds of detention in paragraphs 3(1) to 3(12). Paragraphs
3(1) to 3(12) are 12 criminal cases which have been registered
against the detenu. On going through the grounds of detention,
we have noticed that indeed in the first paragraph of the
grounds of detention, it is stated that the detention order is
based on the 3 incamera statements whereas the para in which
the subjective satisfaction is expressed, shows that the
detention order has been issued, not on the basis of the 3
incamera statements but on the basis of the 12 criminal cases
registered against the detenu which are reflected in
paragraphs 3(1) to 3(12).
5 From the above, it is clear that the detaining authority
has taken contradictory stand. The reply to ground 5 (b) is
even more confusing. In the grounds of detention in paragraph
7 it is stated that it is necessary to detain the detenu on the
basis of criminal cases registered against the detenu which are
jdk 10.crwp.4362.16.j.doc
found in paragraphs 3(1) to 3(12) of the grounds of detention.
However, in the affidavit dated 27.2.2017 filed by the detaining
authority, it is stated that "I have not considered or relied upon
the 12 registered cases against the detenu while arriving at
subjective satisfaction. I say that the material mentioned in
paras 3(1) to 3(12) is a past criminal history of the detenu and
the same is placed before me in order to point out the
propensity and potentiality of the detenu towards criminality
and his prejudicial activities in which he has started his career,
when he was 20 years old ". Thus, the reply shows that the
detaining authority has not relied on the 12 criminal cases
mentioned in paras 3(1) to 3(12) and these cases are
mentioned in grounds of detention by way of past history only.
However, para 7 of the grounds of detention state that it is
necessary to detain the detenu on considering the offences in
paras 3(1) to 3(12) of the grounds of detention.
6 The learned A.P.P. pointed out that in reply to ground
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5(a), the detaining authority has stated that the detaining
authority while issuing the order of detention has taken into
consideration three incidents relating to the incamera
witnesses. However, on going through the grounds of
detention, it is true that in the first para the detaining authority
has stated that he has issued the order of detention on the
basis of 3 incamera statements, however, in the very same
grounds of detention, a contradictory stand is taken in
paragraph 7 where the subjective satisfaction is expressed by
the detaining authority. This paragraph clearly shows that the
detention order has been issued on the basis of 12 criminal
cases registered against the detenu. The details of these cases
are found in paragraphs 3(1) to 3(12) of the grounds of
detention. In these circumstances, we are satisfied that it is the
clear-cut case of non-application of mind on the part of the
detaining authority.
7 Though, no doubt, the Courts exercising powers of
jdk 10.crwp.4362.16.j.doc
judicial review do not consider the challenge to an order of
detention as if on an appeal re-appreciating the materials, yet
since an order of detention in prison involves the fundamental
rights of the citizen, freedom of movement and pursuit of
normal life and liberty, no absolute immunity can be claimed by
the respondents as to the decision arrived at and it is open to
the Courts to see whether there has been due and proper
application of mind. In the present case, there is clear non-
application of mind on the part of the detaining authority. Thus,
the order of detention suffers from a serious infirmity which
goes to the root of the matter.
8 The liberty of the subject being an extremely precious
right, where any infraction of such a right is involved, the Court
must act as a watchdog and a sentinel on the qui vive to see
that every benefit of the lacuna goes to the detenu. On
account of contradictory stand taken by the detaining authority,
it is bound to create serious confusion in the mind of the detenu
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which would come in his way of making an effective
representation. The confusion is further compounded by the
stand taken by the detaining authority in his affidavit in reply
which we have adverted to above.
9 In view of the above facts, this petition deserves to
be allowed. Accordingly, it is allowed. Rule is made absolute in
terms of prayer clause (b).
[ M.S.KARNIK, J.] [ SMT.V.K.TAHILRAMANI,J. ]
kandarkar
