Bombay High Court
Sanjay Rajayya Ratnawar (In Jail) vs State Of Maharashtra Thr. ... on 27 July, 2017
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 229 OF 2017
PETITIONER : Sanjay Rajayya Ratnawar
Aged about 48 years, Occu. Private,
R/o Ward No.1, Aheri,
Tah. Aheri, Dist. Gadchiroli,
(Presently in District Prison, Chandrapur)
VERSUS
RESPONDENTS : 1] State of Maharashtra,
through its Secretary,
Home Department (Special),
Mantralaya, Mumbai.
2] District Magistrate / District Collector,
Gadchiroli, Dist. Gadchiroli.
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Mr. Mir Nagman Ali, Advocate for the petitioner.
Mr. S. S. Doifode, A.P.P. for respondent nos.1 and 2
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CORAM : PRASANNA B. VARALE and
MURLIDHAR G. GIRATKAR, JJ.
DATE : JULY 27, 2017.
JUDGMENT
Rule. Rule returnable forthwith. With the consent of
the learned counsel for the parties, the petition is taken up for final
disposal.
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2] By the present petition, the petitioner challenges the
order passed by the respondent no.2, dated 24.01.2017, thereby
detaining the petitioner exercising the powers conferred under the
Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates
Act, 1981. The petitioner submitted his representation to the
Advisory Board on 08.2.2017 and the respondent no.1 by order
dated 16.2.2017, by exercising the powers under Section 12(1) of
the MPDA Act, confirmed the detention order passed by the
respondent no.2. Being aggrieved by the order passed by the
respondent no.2, the petitioner is before this Court.
3] Mr. Ali, the learned counsel for the petitioner
vehemently submitted that the impugned order passed by the
respondent no.2 suffers on three counts, namely, the material in the
nature of cases registered and relied upon for passing the order
against the petitioner, was too short to arrive at a conclusion that the
activities of the petitioner were in any manner prejudicial to the
maintenance of public order. Most of the cases relied upon by the
respondent no.2 authority while passing the detention order are the
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cases registered under the Bombay Prohibition Act and in almost all
these cases the petitioner is either granted bail or acquitted by the
Court. The learned counsel for the petitioner then submitted that the
second count on which the order suffers is that there is no live link
between the offence registered lastly against the petitioner and the
ultimate detention order. It was submitted that the last offence
referred to and relied on was registered against the petitioner on
30.7.2016, whereas the detention order was passed on 24.01.2017.
As such there was a delay of about six months. Neither the delay is
explained nor there is a live link and as such, the order suffers, is the
submission of the learned counsel for the petitioner. The learned
cousnel for the petitioner then submitted that though, the petitioner
was released on bail in certain offences and though, this material
ought to have been considered by the detaining authority, neither
this material was considered nor the same was supplied to the
petitioner.
4] Mr. Ali, the learned counsel then submitted that apart
from the offences registered against the petitioner, the other
circumstance relied upon was in the nature of in-camera statements
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of the witnesses recorded by the authority. The learned counsel
submitted that the in-camera statements were recorded on
05.11.2016 and 06.11.2016, whereas the same were verified on
08.1.2017 and 09.01.2017, respectively. The learned counsel then
submitted that the authority failed to record subjective satisfaction of
these statements and as such the truthfulness of the statements is
doubtful and non-consideration of this material shows non-
application of mind by the authority and as such on this count also
the detention order passed by the authority suffers. The learned
counsel for the petitioner, in support of his submissions relied on the
following judgments -
1] 2011 All M.R. (Cri.)1491
Vilas Shamrao Goyar @ Chota Papa .vs. State of Mah & others
2] 2013 All M.R. (Cri.) 3870
Niyazuddin @ Sonu Sirajuddin Ansari .vs. State of Mah.& anr.
3] 2012 All SCR 1373
Rushikesh Tanaji Bhoite .vs. State of Mah. And others.
4] 2001 All M.R. (Cri.) 1616
Sanjay Balaram Kirale .vs. State of Mah. and another.
5] 1992 DGLS (SC) 252
Pradeep Nilknath Paturkar .vs. S. Rammurthi and others
5] Mr. Doifode, the learned Additional Public Prosecutor
appearing for the respondents supported the impugned order passed
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by the respondent no.2 authority. He vehemently submitted that the
authority concerned refers to each and every material relied on by it
in the order. The requisite copies of the documents were supplied to
the petitioner. The in-camera statements are not only verified, but
the order also shows subjective satisfaction of the authority. The
learned APP submitted that the material in the nature of offences
registered against the petitioner show that the petitioner is indulged
in series of offences, though most of them are registered under the
Bombay Prohibition Act. The learned APP then submitted that apart
from this material, the respondent authority specifically referred to
the in-camera statements and gist of these in-camera statements is
also reflected in the detention order. The satisfaction arrived at by
the authority is specifically observed by the authority in the order.
The authority also followed the provisions of the Act such as
informing the petitioner that he can avail the opportunity of
submitting a representation to the Advisory Board. The learned APP
submitted that the petitioner availed the opportunity of submitting
representation to the Advisory Board. He further submitted that the
Advisory Board found no error committed by the respondent no.2
authority while passing the detention order and ultimately, the
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respondent no.1 confirmed the detention order passed by the
respondent no.2. The learned APP submitted that along with the
detention order, list of documents was supplied to the petitioner and
the same was inclusive of bail orders passed by the Court, copies of
police custody remand etc. The learned APP then submitted that the
respondent authorities, on the basis of cases registered against the
petitioner was of the opinion that the petitioner was continuously
indulged in an act of committing offences, more particularly, illegal
transportation and selling of illicit liquor and then the authority
recorded the statements of two local residents. The statements were
verified by the Sub Divisional Police Officer. The learned APP
submitted that these being the requisite formalities undertaken by
the authorities concerned as per the provisions of the Act, it cannot
be said that there was an inordinate delay and there was no live link
between the material considered and the order passed by the
authority. The learned APP relied on the following judgments :
1] 2016 All M.R. (Cri.) 3601
Santosh Kashinath Kamble .vs. State of Mah. & others.
2] 2016 (6) All M.R. (Cri.) 5144
Harish Patil .vs. State of Mah. & others.
3] 2016 (5) All M.R. (Cri.) 555
Sagar Prakash Bhosale.v.Commissioner of Police,Solapur & others
7 CRIWP229.17.odt
4] 2016 (6) All M.R. (Cri.) 532
Shahrukh Yunus Khan .vs State of Mah. and others.
6] With the assistance of the learned counsel for the
petitioner and the learned Additional Public Prosecutor for the
respondents, we have gone through the material placed on record.
Perusal of the material shows that the impugned order was passed by
the respondent no.2 on 21.01.2017. The translation of all the
material was provided to the petitioner. Perusal of the detention
order shows that though, the authority stated registration and
pendency of 26 offences against the petitioner and three preventive
actions initiated against the petitioner, the authority relies and refers
to 12 cases. Perusal of the material further shows that copies of first
information reports, statements, police custody remand applicatons
and also copies of bail orders were supplied to the petitioner. On a
perusal of the detention order, we find that the respondent authority
referred to the recording of two in-camera statements. There is also
a statement in the order that these in-camera statements were
verified by the Sub Divisional Police Officer, Jimalgatta. The
authority also states that by analysing the statements, the authority
arrived at a conclusion that these statements are true and correct.
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The brief of the statements is also referred to in the order. The
authority then records its subjective satisfaction. Considering all
these aspects, we are unable to accept the submission of the learned
counsel for the petitioner that the order passed by the respondent
authority suffers from non-application of mind.
7] As referred to above, the material placed on record
clearly show that all the required documents were supplied to the
petitioner. The copies of custody remand applications and orders
passed thereon are also supplied to the petitioner. The applications
for bail filed by the petitioner and the say filed by the prosecution
opposing bail also finds place on record. Perusal of the material also
show that the petitioner was granted bail in Crime No. 6078/2016
and order dated 02.09.2016 granting bail to the petitioner on
conditions is placed on record. We find that apart from the copies of
the reports lodged against the petitioner, the orders passed by the
Court granting bail to the petitioner, copy of proposal initiating
preventive action against the petitioner were also supplied to the
petitioner. Thus, on a perusal of the material, we are unable to
accept the submission of the learned counsel for the petitioner that
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though, the respondent authority referred to 26 offences, no material
of these offences is provided to the petitioner. We also find from
perusal of the record that the respondent authority relied on 12 cases
registered against the petitioner so as to consider the criminal record
against the petitioner. Apart from these cases registered against the
petitioner, the order refers to two in-camera statements recorded by
the authority. Though, it was submitted by the learned counsel for
the petitioner that there is a vague reference about these two in-
camera statements and as the in-camera statements failed to show
any material against the petitioner, these statements ought not to
have been relied upon. Perusal of the detention order shows that the
reference of these in-camera statements clearly reveal the period of
incident i.e. incident took place in the month of August, 2016. It
refers to the act of intimidation and physical assault by the
petitioner. The statements also refer to the fact that the petitioner
was moving in the locality carrying weapons like knife in his pocket.
The second statement reflects that the petitioner was indulged in an
act of abusing the lady members of the locality in filthy language and
when he was opposed, he started physical assault. The statements
then clearly show that because of the activities of the petitioner, the
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witnesses were not coming forward to lodge report against the
petitioner and the activities of the petitioner are creating an
atmosphere of fear in the society and hardship and inconvenience
suffered by the residents of the locality. The detention order clearly
refers to the satisfaction arrived at by the authority and the same is
recorded in the order. Thus, we are unable to accept the submission
of the learned counsel for the petitioner that the order suffers from
non-application of mind.
8] The learned counsel for the petitioner submitted before
this Court that the detention order though refers to pendency of
cases against the petitioner, the petitioner was acquitted in one of
the cases. He further submits that the respondent no.2 failed to take
note of this fact and as such the order suffers from non-application of
mind. On the backdrop of the submission of the learned counsel, we
have perused the record. We find that the petitioner submitted a
representation on 07.2.2017 against the order of detention dated
24.01.2017. The judgment and order of acquittal is dated
25.1.2017, thus, the petitioner was acquitted subsequent to passing
the detention order. In view of this fact, we are unable to accept the
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submission of the learned counsel that the fact of acquittal of the
petitioner is not considered by the authority and as such the order
suffers from non-application of mind.
9] Though, Mr. Ali, the learned counsel for the petitioner
placed reliance on the judgments referred to above and though, there
cannot be any dispute on the proposition of law reflected in those
judgments, in view of the factual aspects reflected from perusal of
the record and referred to above, in our opinion, the judgments
relied upon by the learned counsel for the petitioner are of no help to
him.
10] Mr. Doifode, the learned APP placed reliance on the
judgment of this Court in the case of Harish Patil .vs. State of
Maharashtra (supra) in support of his submission that the in-camera
statements of the witnesses were throughly scrutinized by the
authority. The brief of the statements is also referred to in the
impugned order and the order also refers to the subjective
satisfaction of the authority. As such, the petitioner cannot raise the
ground of non-application of mind by the detaining authority in
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scrutinizing the in-camera statements. We find considerable merit in
the submission of the learned APP. The learned APP also placed
reliance on the judgment in the case of Santosh Kamble .vs. State of
Maharashtra (supra) on the aspect of consideration of in-camera
statements.
11] As stated above, the detaining authority was conscious
of the material against the petitioner and the same was referred to in
the order of detention such as, offences registered against the
petitioner, orders passed by the competent Court including the
orders of bail, police custody remand and this material was supplied
to the petitioner. On this aspect, it will be useful to refer to the
judgment of this Court relied on by the learned APP in the case of
Sagar Bhosale .vs. Commissioner of Police, Solapur (supra), more
particularly paragraph 11 thereof, which reads thus -
"11. The above-mentioned portion leaves no manner of
doubt that the detaining authority was fully aware of
the fact that the detenu was in custody in the pending
criminal case i.e. C.R. No. 350/14 which was under
Section 392 read with 34 Indian Penal Code. From the
grounds of detention, it is clear that the detaining
13 CRIWP229.17.odt
authority was aware that the charge sheet in the said
criminal case was already filed on 20.4.2015. Thus, it
cannot be said that there was no cogent material before
the detaining authority to come to the conclusion that
there was an imminent possibility of the detenu being
released on bail in CR No. 350/14 as contended in the
ground raised by the petitioner. Before the detaining
authority, the opinion of the Law officer was also very
much there that the detenu may be released on bail in
this case under Section 392 read with Section 34 Indian
Penal Code Moreover, while considering the possibility
whether bail can be granted, the nature of offence has
also to be seen i.e. type of crime. The detenu was in
custody in a case under Section 392 of Indian Penal
Code. The maximum punishment for the said offence is
ten years. The offence is not punishable with death or
life imprisonment and hence, the apprehension of the
detaining authority that there was imminent possibility
of petitioner being released on bail cannot be faulted.
Thus, it cannot be said that there was no cogent and
tangible material before the detaining authority to
arrive at subjective satisfaction that there was imminent
possibility of the detenu being released on bail
considering the fact that the detenu was not involved in
an offence punishable with death or life imprisonment.
Further granting bail in such cases after filing of the
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charge-sheet, is a normal practice of most Courts. A
priori, it cannot be argued that this is a case of mere ipse
dixit of the detaining authority regarding the imminent
possibility of the detenu coming out on bail. Looking to
the history of the detenu, it cannot be said that there
was no material before the detaining authority to reach
the subjective satisfaction that if released on bail, the
detenu may again indulge in similar prejudicial
activities. Keeping that in mind, the detaining authority
arrived at the subjective satisfaction that the detenu may
be granted bail at any time under the ordinary law of
the land and hence, it was necessary to issue an order of
detention to prevent the detenu from again indulging in
similar activities which are prejudicial to the
maintenance of public order."
12] The learned APP also relied on a judgment in Sharukh
Yunus Khan .vs. State of Maharashtra. (supra). In somewhat similar
circumstances of the present case, namely certain offences were
registered against the petitioner and the petitioner was in judicial
custody so also, two in-camera statements were recorded, wherein it
was stated the detenu assaulted the complainant with dangerous
weapon, the detention order was passed and the said detention order
was the subject matter before the Division Bench of this Court.
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While dealing with the situation, this Court observed at paragraph 9
thus -
"9. The grounds of detention clearly advert to the fact
that confidential inquiry was made about criminal
activities of the detenu in the locality of Wakad Police
Station and surrounding areas wherein it was noticed
that a large number of people were victimized by the
detenu in recent past. It was also noted that due to fear
of the detenu, nobody dares to complain against the
detenu openly and make statement openly against the
detenu due to fear of retaliation. The witnesses only on
being assured that their names and identities will be
kept secret and they will not be called open to give
evidence against the detenu in any court of law or any
other forum, have expressed willingness to give their
statements about criminal activities of the detenu. In the
grounds of detention, contents of the in-camera
statements of the two witnesses "A" and "B" are
reproduced. It discloses the involvement of the detenu in
criminal activities within the area of Wakad Police
Station and nearby areas indicating that the detenu had
created a reign of terror and had become a perpetual
and potential danger to the even tempo of life of people
in those areas. Thus, it is seen that the detenu had
created such a reign of terror that the people were not
willing to come forward to complain against him. In
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such case, it is difficult for the ordinary law of land to
deal with the situation and to prevent the detenu from
again acting in a manner prejudicial to the maintenance
of public order."
13] On consideration of all the material referred to above,
we find no error committed by the detaining authority i.e.
respondent no.2. The petition thus deserves to be dismissed and the
same is accordingly dismissed. Rule stands discharged.
JUDGE JUDGE
Diwale
