Akshay Atmaram Rathod (In Jail) vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 1787 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                  NAGPUR BENCH, NAGPUR.



             CRIMINAL WRIT PETITION NO. 83 OF 2017.


 Akshay Atmaram Rathod,
 Aged about 29 years,
 Occupation - Private, 
 Resident of Bangarnagar,
 Yavatmal.                                                       ..... PETITIONER.


                                     VERSUS 


 1. State of Maharashtra,
 through its Secretary,
 Home Department (Special), 
 Mantralaya, Mumbai.

 2. District Magistrate/Collector,
 District Yavatmal.                               ..... RESPONDENTS.


                            --------------------------

Shri M.N. Ali, Advocate for the Petitioner. Shri V.A. Thakare, A.P.P. for Respondents.

--------------------------

CORAM : B.P. DHARMADHIKARI & V . M .

DESHPANDE , J J.

                               DATE          :  APRIL 18, 2017.





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ORAL JUDGMENT : (Per : V.M. Deshpande, J.)

Heard Shri M.N. Ali, learned counsel for the

petitioner and Shri V.A. Thakare, learned A.P.P. for

respondents.

2. By present Writ Petition, the petitioner questions the

correctness and legality of the orders passed by Respondent

no.2- the District Magistrate, Yavatmal dated 11.09.2016, by

which the District Magistrate, while exercising powers under

Section 3(1) of the Maharashtra Prevention of Dangerous

Activities of Slum Lords, Bootleggers, Drug Offenders,

Dangerous Person and Video Pirates Act, passed an order

thereby directing detaining of petitioner. The petitioner also

questions the orders passed by respondent no.1 dated

14.10.2016, by which the State Government has exercised the

powers under 12(1) of the aforesaid Act, confirmed the order

of detention passed by the District Magistrate, and thereby

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directed detention of petitioner for a period of one year from

the date of detention.

3. Learned counsel for the petitioner has broadly

submitted the following three points - That there is no live link

in between the last offence registered against the petitioner on

25.02.2016 and order of detention dated 11.09.2016. Another

submission of learned counsel is that, copies of in-camera

statements are not supplied to the petitioner and that causes

serious prejudice to the petitioner for making representation to

various authorities. Another contention that is raised by the

petitioner is in respect of delay of 19 days while considering the

representation given by the petitioner. He therefore, submits

that petition needs to be allowed.

4. Per contra, learned A.P.P. on behalf of respondents

submit that the gist of in-camera statements is already

mentioned in the grounds of detention. He further submits

that other activities of petitioner are also considered by the

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Detaining Authority, such as he pointed out a Crime

No.148/2009 under Sections 224 and 225 of the Indian Penal

code, wherein it is alleged that the petitioner by misleading

police authorities has escaped from their legal custody.

5. Present Writ Petition can be allowed only on the

ground of non-supply of documents namely, in-camera

statements recorded by the police authorities to the petitioner,

and therefore, it has caused serious prejudice to the petitioner

in making effective representation to the Authorities. Two in-

camera statements are recorded on the very same date i.e.

03.09.2016. Learned A.P.P. has made us available the original

in-camera statements for our perusal. Perusal of the same

shows that both the statements were verified by the Sub

Divisional Police Officer, Yavatmal. The verification as noted

on both these in-camera statements reads as "verified. Sd/-

S.D.P.O., Yavatmal".

6. From the aforesaid it is crystal clear that the Sub

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Divisional Police Officer does not indicate anything as to how

he was satisfied about the statements of those witnesses whose

identify is not disclosed as to why there is nurturing fear in

their mind in respect of present petitioner. There is no

material available on record, on in-camera statements also

does not show that those statements were placed before the

Detaining Authority before passing of the order of detention.

7. The submission of learned A.P.P. Shri Thakare, that

non supply of those documents does not vitiate the entire

order, since the gist of those statements is already incorporated

in the order of detention. We ourselves have gone through

minutely in detail the in-camera statements. In order to

conceal the identity of those two witnesses, we are not making

any elaborate discussion in respect of these in-camera

statements and the gist of statements as available in the order

of detention, however, we do not have any hesitation to record

in this judgment that the gist of the statements as noted in the

order of detention materially differs from the actual statements

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of both these two witnesses. Therefore, in our view,

submission of learned A.P.P. in that behalf cannot be accepted.

8. Since the in-camera statements were not supplied to

the petitioner while serving order of detention and grounds of

detention, according to us that has materially affected the

valuable right of the petitioner to make representation to

various authorities, including the Detaining Authority. Further

there is total non-application of mind on the part of the

verifying authority as to how the statements which were

verified to suggest that the persons whose statements are

recorded in-camera nurture fear in their mind in respect of

petitioner. Along with that, it is clear that the copy of verified

statements were not before the Detaining Authority.

9. It is to be noted that last of the criminal activity as

alleged against the petitioner is of May, 2016, whereas the

order of detention is passed after a period of 4 months

therefore, there is no live link in between the activities of

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petitioner and the order of detention.

10. The cumulative effect of the aforesaid discussions

leads us to pass the order quashing the order of detention

which is subsequently approved by the State Government,

hence, we pass the following order.

                                        ORDER



                     (1)       Writ Petition is allowed.


                     (2)       The   order   of   detention   passed   by   the 

respondent no.2 District Magistrate, Yavatmal dated 11.09.2016 together with the order of approval passed by the State Government dated 14.10.2016 against the petitioner under Section 3 (1) of the Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers, Drug Offenders, Dangerous Person and Video Pirates Act, is hereby quashed and set aside.

(3) The petitioner be set at liberty, if his custody is not required by State in any other

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offence/matter.

(4) Rule is made absolute in aforesaid terms, with no order as to costs.

                        JUDGE                                  JUDGE

 Rgd.