Sandeep @ Shankar Vasant Khalase vs The Commissioner Of Police Pune ...
2017 Latest Caselaw 1252 Bom

                                    1               CRI WP 193.2017.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

            CRIMINAL WRIT PETITION NO. 193 OF 2017

             Shri Sandeep @ Shankar Vasant Khalase
             age 26 yrs, residing at Aaudumbar Niwas,
             Bapuji Buwa Nagar, Thergaon, Pune.
             Presently detained at Aurangabad.
                                            ...Petitioner/Detenue....

             VERSUS

     1.      The Commissioner of Police,
             Pune City, Pune.

     2.      The State of Maharashtra,
             (Through Addl. Chief Secretary,
             to Government of Maharashtra,
             Mantralaya, Home Department, 
             Mantralaya, Mumbai)

     3.      The Superintendent,
             Aurangabad Central Prison,
             Aurangabad.                            ..Respondents....

                                 ...
     Advocate for Petitioners : Mr U N Tripathi h/f R D Sanap 
                APP for Respondents: Mr D R Kale 
                                 ...
          CORAM : S.S. SHINDE & V.K. JADHAV, JJ.

...

Reserved on : March 16, 2017 Pronounced on : March 29, 2017 ...

ORAL JUDGMENT :- (Per V.K.Jadhav, J.)

1. Rule. Rule made returnable forthwith. Heard

finally with consent at admission stage.

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2. By this petition, the petitioner is challenging the

legal and Constitutional validity of the order of detention

bearing D.O. No.PCB/DET/3239/2016 came to be

passed under Section 3 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.L.V. Of

1981) (Amendment-1996) (Amendment-2009)

(Amendment-2015) (hereinafter referred to as

M.P.D.A.Act, 1981) by respondent no.1.

3. The learned counsel for the petitioner submits that

detaining authority has referred to and relied on a single

solitary incident i.e. Crime No.320/2016 under sections

307, 336, 427, 143, 144, 146, 147, 148, 149 of IPC r/w

4/25 of Arms Act 1959; read with section 37 (1)/135 of

the Maharashtra Police Act and five in-camera

statements of the witnesses 'A', 'B', 'C', 'D' and 'E'

respectively. The detaining authority has not recorded

his/its satisfaction on the grounds of detention to the

effect that the authority has gone through the contents

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of in-camera statements and verified them. The

Detaining Authority has not seen the in-camera

statement copies nor endorsed on said statements as

"seen'. The detaining authority has not discussed with

the Assistant Commissioner of Police regarding

truthfulness of the incident revealed from those in-

camera statements. The order of detention is illegal and

bad in law for non-recording satisfaction by the

detaining authority with regard to those in-camera

statements.

4. The learned counsel for the petitioner submits

that, the petitioner is in custody in connection with

crime No.320/2016. The petitioner preferred Bail

Application before the learned Sessions Judge, Pune,

which came to be rejected on 7.9.2016. The detaining

authority on the very next day i.e. on 8.9.2016 passed

the order of detention. There was no cogent material

before the detaining authority to arrive at a conclusion

that there is imminent possibility of the petitioner's

release on bail. On this backdrop there was no

compelling necessity to detain the petitioner. The order

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of detention is illegal, without application of mind and

thus liable to be quashed and set aside.

5. The learned counsel for the petitioner submits

that, on the basis of the material placed before the

detaining authority, the petitioner cannot be called as a

'dangerous person' as defined in section 2 of M.P.D.A.

Act, 1981. It appears from the impugned order that

detaining authority has taken into consideration crime

No.320/2016 alone alongwith five in-camera statements.

The petitioner cannot be held to be a 'dangerous person'

for a single solitary incident. A person who habitually

commits the offence is to be designated as a dangerous

person' in view of the provisions of section 2 of M.P.D.A.

Act, 1981.

6. The learned counsel for the petitioner by inviting

our attention to paragraph no.3 of the grounds of

detention served upon the petitioner wherein the

detaining authority has mentioned numbers of crimes,

names of the police stations at which said crimes have

been registered, the date and time of the registration of

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such crimes, date and time of arrest and status in a

tabular form and submits that the subjective

satisfaction of the detaining authority appears to have

been influenced by the offence which have been set out

in the said paragraph no.3 in the tabular form. The

learned counsel for the petitioner thus submits that the

detaining authority has not set out relevant facts

constituting the said offences and as a result the

petitioner was prevented from making an effective

representation in accordance with clause 5 of Article 22

of the Constitution of India.

7. The learned counsel for the petitioner in order to

substantiate his contentions placed his reliance on

following cases :-

1. Khudiram Das Vs. The State of West Bengal and others reported in (1975) 2 SCC page 81.

2. Ravi Suresh Shinde Vs. The District Magistrate, Kolhapur in Writ Petition No.1294/2013 Decided at Principal Seat of this Court on 26.6.2013 (Coram A S Oka and G.S. Patel, JJ.)

3. Sau Chandabai W/o Dadarao Kale Vs. State of Maharashtra and others reported in 2016 ALL MR (Cri) 4797.

4. Vishal s/o Shahaji Kasabe Vs. The Commissioner of Police, Pune and others reported in 2017 ALL MR (Cri) 816.

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5. Jay @ Nunya Rajesh Bhosale Vs. The Commissioner of Police, Pune and others reported in 2015 ALL MR (Cri) 4437.

6. Shahajahan w/o Kalimkhan Samshadkhan Pathan Vs. State of Maharashtra and another reported in 2016 ALL MR (Cri) 4233.

7. Rushikesh Tanaji Bhoite Vs. State of Maharashtra and others reported in 2012 Cri.L.J. 1334

8. The learned Commissioner of Police, Pune has

filed the affidavit of reply in the matter. The learned

APP submits that, the detaining authority is satisfied to

detain the petitioner with a view to prevent him from

acting in any manner prejudicial to the maintenance of

public order within the meaning of section 3 of M.P.D.A.

Act, 1981. The Detaining Authority has carefully gone

through the material placed before it and after arriving

at a subjective satisfaction reached to the conclusion

that the petitioner is acting in a manner prejudicial to

the maintenance of public order and accordingly passed

the detention order.

9. The learned APP submits that, the detaining

authority has given list of offences and Preventive Action

taken against the petitioner-Detenue. There are in all

seven offences registered against the petitioner at

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Hinjewadi, Sangavi and Wakad Police Station, in Pune

City, and out of those seven offences, Detaining

Authority has mainly relied upon recent offence

registered at Wakad Police Station, Pune vide crime

No.320/2016. So far as remaining six offences as

mentioned at Serial No. 1 to 6 in paragraph no.3 in the

tabular form of the grounds of detention are concerned,

the detaining authority has arrived at a subjective

satisfaction that the petitioner is a habitual criminal,

and he is habitually committing the offences under

Chapter XVI and XVII of the IPC as well as Chapter V of

the Arms Act, 1959 and thus, the Detaining Authority

further satisfied that the petitioner is a 'dangerous

person' as defined in section 2(b-1) of M.P.D.A. Act,

1981. The learned APP submits that, so far as crime

No.320/2016 is concerned, the petitioner has committed

the said offence when the externment order No.22/2014,

dated 21.10.2014, passed by the Deputy Commissioner

of Police, Pune was in force. The learned APP submits

that, even one prejudicial Act can be treated as

sufficient for forming the requisite satisfaction.

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10. The learned APP submits that, so far as reference

to in-camera statements in the grounds of detention is

concerned, in view of the government Circular issued by

the Home Department on 29.9.2002, in-camera

statements are required to be placed before the

Assistant Commissioner of Police/Dy. Commissioner of

Police for verification purposes. In the instant case, the

Assistant Commissioner of Police has verified those in-

camera statements and made endorsement to that

effect. The verification report as well as verification

remarks written by the Assistant Commissioner of Police

on the said in-camera statement of the witnesses

'A,B,C,D, and 'E' respectively indicates that verifying

authority has ascertained the truthfulness and

genuineness of the incident as narrated in the said in-

camera statements. Furthermore, the detaining

authority in paragraph no. 5.1-A to 5.5-E of the grounds

of detention order reproduced the gist of the in camera

statements. Further in paragraph no.9 of the order, the

Detaining Authority on perusal of those in-camera

statements alongwith the report submitted by the ACP,

Pune about verification of truthfulness and genuineness

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of those in-camera statements, recorded his satisfaction

about the facts narrated in the said in-camera

statements and apprehension expressed by the

witnesses therein, as true and reasonable.

11. The learned APP further submits that in

paragraph no.8 of the grounds of detention, it has been

specifically mentioned about rejection of the Bail

Application filed by the petitioner before the Sessions

Court, Pune. The Detaining Authority was aware of

rejection of bail. The Detaining Authority has further

observed that though bail of the petitioner came to be

rejected by the Sessions Court, Pune, bail was granted

to one of the petitioner's accomplice namely Ishwar

Kisan Gaikwad. The detaining authority has also

observed that, the offence alleged to have been

committed by the petitioner vide Crime No.320/2016 are

not punishable with death sentence and possibility of

the petitioner being released on bail in future cannot be

ruled out altogether. In the backdrop of the same the

detaining authority has further observed that there is

an imminent possibility of the petitioner reverting to

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similar illegal activities which are prejudicial to the

maintenance of public order in future.

12. The learned APP further submits that the

petitioner alleged to have been committed the offences

under Chapter XVI and/or XVII of the IPC as well as

Chapter V of the Arms Act. There is no requirement of

exact numbers of crimes registered against the

petitioner for branding him as a 'dangerous person'.

There is sufficient material on record to conclude that

the petitioner is a 'dangerous person' as defined under

Section 2(b-1) of M.P.D.A. Act, 1981. Thus, the order of

detention is legal, proper and passed after application of

mind by the Detaining Authority. Grounds raised by the

petitioner are without any merit and requires no

consideration.

13. Learned APP in order to substantiate his

contentions placed his reliance on following cases :-

1. Abdul Sathar Ibrahim Manik Vs Union of India reported in (1992) 1 Supreme Court Cases 1.

2. Firoz Hyder Shaikh @ Kalya Firoz Vs. Commissioner of Police and others reported in 2012 (4) Bom.C.R. (Cri.)677.

11 CRI WP 193.2017.odt

3. Ravi Hanumant Thorat Vs. The State of Maharashtra reported in 2014 ALL MR (Cri) 2168.

4. Santosh s/o Bhagwan Patil Vs. The State of Maharashtra reported in 2014 ALL MR(Cri) 53.

5. Shri Nasir Ismail Mujavar Vs. Commissioner of Police, Mumbai and others reported in 2014 ALL MR (Cri) 639.

14. So far as in-camera statements are concerned, the

learned counsel for the petitioner submits that the

Detaining Authority has not recorded his satisfaction in

the grounds of detention to the effect that he has gone

through the contents of the camera statements and

verified the same. Even the Detaining Authority has not

seen the in-camera statements nor endorsed nor

discussed with the Assistant Commissioner of Police

regarding the truthfulness of the incident. Thus, the

camera statements are not authentic and cannot be

used for passing an order of detention.

15. On careful perusal of the grounds of detention

order, we noticed that in paragraph no.5 the detaining

authority has observed that senior P.I. of Wakod police

Station, Pune conducted a confidential inquiry of the

criminal activities of the petitioner and his associates.

The inquiry revealed that the petitioner has terrorized

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the residents staying in his area as well as in the

adjoining areas. However, since he is a 'dangerous

person' nobody dares to complaint against him openly

due to fear of retaliation. The residents of the area were

taken into confidence and assured that their names

would not be disclosed and also that they would not be

summoned to give evidence against petitioner in any

court or any open forum. After giving them such an

assurance, some residents of the area disclosed criminal

activities of the petitioner. In the light of these

observations, Detaining Authority has further

mentioned gist of the in-camera statements in

paragraph nos.5.1 to 5.5. In paragraph no. 7 the

Detaining Authority has recorded that the petitioner

have unleashed a reign of terror and have become a

perpetual danger to the society at large in the area of

Wakad, Hinjewadi and Sangvi Police Stations in the

Pune City. The people there are experiencing a sense of

insecurity and are living under shadow of constant fear,

whereby even day to day business and activities of

citizens are under threat. The petitioner showed no

respect to law of the land and to the citizens of the

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society where he lives. The petitioner is perpetually an

impulsively violent man who wants to spread terror in

the society by his violent criminal activities, in

connivance with other criminal associates.

16. On perusal of the record and proceeding we have

come across with the Ferist of the documents supplied

to the petitioner. It appears that each and every in-

camera statement bears endorsement of verification by

the Assistant Commissioner of Police, Pune City. We

have noticed the Ferist (list of the documents) being

supplied to the petitioner, wherein, reference has been

given that copies of those in-camera statements

alongwith endorsement made thereon have been

supplied to the petitioner. It appears from the record

and proceeding that Assistant Commissioner of Police

has submitted a report about the aforesaid verification

of the in-camera statements and the ascertainment of

the facts of those in-camera statements to the

Commissioner of Police.

17. As per the said endorsement, the Assistant

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Commissioner of Police has called those persons whose

in-camera statements were recorded in the office, read

over the said statements to them separately and

accordingly verified those statements with the remark

that incident as quoted in those in-camera statements

are authentic. It further appear from the said

endorsements that the Assistant Commissioner of Police

has not only ascertained the truthfulness of those in-

camera statements, but also visited the spot of the

incident as narrated in those in-camera statements and

found that the incident as quoted in the in-camera

statements are authentic, genuine and apprehension

expressed by those persons appears to be well founded.

18. In a case of Shahajahan w/o Kalimkhan

Samshadkhan Pathan Vs. State of Maharashtra &

another reported in 2016 ALL MR (Cri) 4233 (supra)

relied upon by the learned counsel for the petitioner, the

Division Bench of this Court in the facts of the said case

observed that, the impugned order is silent with regard

to in-camera statements, either seen or facts stated

therein being ascertained by the Commissioner of

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police. The Division Bench of this Court has also

observed that, on perusal of two in-camera statements

the same do not indicate that said statements were duly

seen and thereafter initialled by the Commissioner of

Police. In the backdrop of these facts, the Division

Bench has observed that in absence of the aforesaid

compliances, subjective satisfaction of the detaining

authority has been affected.

19. In a case Sou. Chandabai w/o Dadarao Kale Vs

State of Maharashtra and others (Supra) relied upon

by the learned counsel for the petitioner, the Division

Bench of this Court has noticed that the ACP of police

has made endorsement on in-camera statements to the

effect that he has personally verified the same and

satisfied about the position and statement appears to be

true. However, in paragraph no.13 of the judgment, the

Division Bench has observed that there is no remark or

endorsement by the Commissioner of Police anywhere on

these statements to show that he has seen the same. In

this case, the Division Bench has also observed that,

the ACP has not placed any date below said

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endorsements and endorsements are almost identical.

The date on which in camera statements were verified

by calling the witnesses is not apparent.

In the instant case, on careful perusal of those in

camera statements, we do not find that the learned

Commissioner made any endorsement or pass any

remark on those in-camera statements to the effect that

he has seen the same. It also appears from the

endorsement made by the Assistant Commissioner of

Police on those in camera statements that on 24.8.2016

the deponents of those in-camera statements were

called in the office and the learned A.C.P. has verified

the statements of those persons in between 16.00 hours

to 16.35 hours. It further appears that on the same

day, the A.C.P. has submitted her report about

ascertainment of truthfulness of those in-camera

statements to the Commissioner of Police. We doubt

that, the Assistant Commissioner of Police, in fact

questioned those persons and truth of assertions

verified by her. On the same day, that is on 24.8.2016 if

the report is submitted by the Assistant Commissioner

of Police to the Commissioner of Police, then, it is

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doubtful that as to when Assistant Commissioner of

Police has visited the spot of incident as narrated in the

in-camera statements and further made verification.

The persons of those in-camera statements are residing

in different areas of Pune City and the place of incident

as narrated by those persons are different. We do not

find any substance in the submissions made by the

learned APP that since the gist of the in-camera

statements mentioned in the ground of detention,

inference could be drawn that the Detaining Authority

has subjectively satisfied about truthfulness of

allegations made in the in-camera statements and

apprehension expressed by those persons in their

respective statements.

The learned counsel for the petitioner has

vehemently submitted that the Detaining Authority has

not discussed truthfulness of those in-camera

statements with the Assistant Commissioner of Police.

The Detaining Authority has not controverted the same

in the affidavit-in-reply. Thus, the above cited case

relied upon by the learned counsel for the petitioner

squarely applies to the fact and circumstances of the

18 CRI WP 193.2017.odt

present case. We are of the considered opinion that

lacuna noticed above is enough to demonstrate non

application of mind by the Detaining Authority.

20. In the instant case, in paragraph no.3 of the

grounds of detention, the Detaining Authority has set

out crime numbers, offences under which crime came to

be registered against the petitioner and names of police

stations, alongwith the date of registration of crimes and

date and time of the arrest of the petitioner in

connection with the said crimes. The Detaining

Authority has also mentioned one case of preventive

action and also mentioned the same in the identical

manner in the tabular form. The said information is

given in paragraph no.3 of the grounds of detention in

tabular form. In the same paragraph Detaining

Authority has stated that above mentioned offences have

been registered against the petitioner from time to time

for his criminal acts, however, the same have had no

effect on him. On the contrary, the petitioner's illegal

and dangerous criminal activities are showing an

ascending trend. It is thus clear that the subjective

19 CRI WP 193.2017.odt

satisfaction of the Detaining Authority is influenced by

said registration of crime as set out in paragraph no.3 in

the tabular form. The learned counsel for the petitioner

vehemently submitted that Detaining Authority has not

set out relevant facts constituting the said offences as

mentioned in paragraph no.3 in the tabular form.

21. In a case of Ravi Suresh Shinde Vs. District

Magistrate, Kolhapur (supra) relied upon by the

learned counsel for the petitioner, by referring the

decision of the Apex Court in a case of Khudiram Das

Vs. The State of West Bengal and others [(1975) 2

SCC 81], the Division Bench of this Court, in paragraph

no.5 of the judgment made following observations :-

5. Below the paragraph 12, there are subparagraph (1), (2) and (3) which contain three lists comprising of nine First Information Reports and five non- cognizable offences registered against the Petitioner. The Sections under which the offences are allegedly punishable, the dates of incidents and the names of the police stations have been incorporated therein in a tabular format. However, there is no narration of the incidents which lead to registration of the said offences. Even the gist of the facts set out in the First Information Reports has not been incorporated therein. At this stage, we make a reference to the well known decision of the Apex Court in the case of Khudiram Das V/s. The State of West Bengal and others, : [(1975) 2 SCC 81] : 1975 (2) SCC 1. In paragraph 6, the Apex Court held thus:

"If this be the true reason for providing that the grounds of which the order of detention is made should be communicated to the Detenue, it is obvious that the 'grounds' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based."(underlines added)

20 CRI WP 193.2017.odt

After referring to its earlier decisions in the case of Golam alias Golam Mallick V/s. State of West Bengal : 1975 (2) SCC 4 as well as in the case of Ram Krishan Bhardwaj V/s. State of Delhi : AIR 1953 SC 318, the Apex court held thus:

"It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is that plain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no shortfall in the materials communicated shall stand in the way of the detenu in making any early, yet comprehensive and effective, representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of his freedom. These are the legal bulwarks enacted by the Constitution makers against arbitrary or improper exercise of the vast powers of preventive detention which may be vested in the executive by a law of preventive detention such as Maintenance of Internal Security Act, 1971." (underlines added)

6. As we have noted earlier, paragraph 12 is described as a ground of detention by the detaining authority. As held by the Apex Court, a ground means all basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which the order of detention is based. A ground is not merely a fact that that a particular offence has been registered against the Detenu. A ground is a factual constituent on which the subjective satisfaction of the detaining authority is based.

22. The learned Commissioner of Police in paragraph

no.8 of her affidavit-in-reply has stated that the

Detaining Authority has mentioned the list of offences

and preventive action taken against the petitioner and

out of seven offences registered against the petitioner as

shown in paragraph no.3 in the tabular form in the

grounds of detention, the Detaining Authority has

mainly relied on the recent offence registered at Wakad

Police Station vide crime no.320/2016. It has also been

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stated in the same paragraph of affidavit in reply that

from the remaining six offences as mentioned at serial

no. 1 to 6 in the chart of offences in paragraph no.3, the

Detaining Authority has arrived at his subjective

satisfaction that the petitioner is habitual criminal and

a dangerous person as defined in section 2 (b-1) of

M.P.D.A.Act, 1981. Thus, the Detaining Authority has

admitted that the incident and other details of the

aforesaid crime as set out in paragraph no.3 of the

Tabular Form of the grounds of detention have not been

narrated in the grounds of detention. In a case of

Khudiram Das Vs. The State of West of Bengal and

others (supra) the Apex Court has held that 'grounds'

mean all the basic facts and materials which have been

taking into account by the Detaining Authority in

making out grounds of detention. Thus, merely

mentioning of crime numbers, penal sections, names of

police stations, and the date of arrest and registration of

crime is not sufficient compliance with the

constitutional safeguard of communicating the grounds

of detention. In the instant case, there is violation of

safeguard as provided under Article 22 (5) of the

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Constitution of India. It is apparent that basic facts and

material in relation to the said crimes which have

influenced subjective satisfaction of the Detaining

Authority have not been incorporated in the grounds

served upon the petitioner. Thus, the impugned order

questioning of detention is also vitiated on this ground.

23. Apart from the incident as alleged in the in-

camera statements and formal information about

registration of six crimes registered in between the year

2008 to 2014, the detaining authority has mainly relied

upon registration of crime no. 320/2016. There is a gap

of near about 2 years in between the crime registered

earlier and recent crime as shown to have been

registered in the year 2016 under crime no.320/2016. In

view of the provisions of sub-section (1) of Section 3 of

the M.P.D.A. Act, 1981, an order of detention can be

passed with a view to prevent a detenue from acting in

any manner prejudicial to the maintenance of the public

order. Clause (a) of section 2 of the Act, defines the

term acting in any manner prejudicial to the

maintenance of the public order. In the instant case, the

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case of the petitioner is governed by clause (iv) which

applies to a 'dangerous person'. The term 'dangerous

person' is also defined in section 2(b-1). Section 2(a)

clause (iv), section 2 (b-1) dangerous person, section 3

(1) relevant for present discussion which reads as under

:-

2.(a) "acting in any manner prejudicial to the maintenance of the public order" means -

(i).....................

(ii)....................

(iii)....................

(iv) [In the case of dangerous person, when he is engaged, or is making preparation for engaging in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order.]

2(b-1) "dangerous person" means a person, who either by himself or as a member or leader of gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.

"3(1). The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained."

24. In the instant case, the Detaining Authority has

concluded that the petitioner is a 'dangerous person' as

defined in the Act and his activities as revealed from the

history of the registration of the crime against him

24 CRI WP 193.2017.odt

prejudicial to the maintenance of the public order. If

those in-camera statements and the information about

the registration of the crime till the year 2014 if it is kept

out of consideration for want of furnishing all basic facts

and material, the Detaining Authority has recorded his

subjective satisfaction only on the basis of one recent

case bearing crime no.320/2016. It is impossible to

accept that on the basis of this crime alone, the

Detaining Authority has correctly recorded its subjective

satisfaction that the petitioner is a 'dangerous person'

as defined in the act and his activities are prejudicial to

the maintenance of the public order.

24. The learned APP has vehemently submitted that,

even on the basis of recent case bearing crime

no.320/2016, the Detaining Authority has correctly

recorded his subjective satisfaction. The learned A.P.P.

has also submitted that subjective satisfaction arrived

at by their authority on proper application of mind on

the question of compelling necessity is not open to

judicial review. The learned APP has also submitted

that there are severable other grounds if invites

25 CRI WP 193.2017.odt

criticism it would not vitiate entire detention.

25. In a case Ravi Hanumant Thorat Vs. The State

of Maharashtra and others reported in 2014 ALL MR

(Cri) 2168, (supra) relied upon by the learned APP, the

Division Bench of this Court has referred Vinod K

Chawla Vs. Union of India and ors (2006) 7 SCC 337

wherein the Supreme Court in paragraph no.8 of the

judgment has made following observations :-

"8.We would like to clarify here that the law does not require that every document or material in possession of sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document or material is not placed by the sponsoring authority before the detaining authority, 29/32 Cr.wp.3920.2012.doc the formation of opinion and the subjective satisfaction of the detaining authority would get vitiated."

26. The Division Bench has also referred case

Anuradha Vs Jt. Secretary and another reported in

(2006) 5 SCC 142, wherein the Supreme Court has

made following observations.

Vague nature of one of the ground would not vitiate the entire detention order if there are severable grounds. Detention order as a whole is not invalid as it stands on other ground as held in Anuradha V/s. Joint Secretary & Anr. (2006) 5 SCC 142 as under :-

"It is true that this Court in series of decisions has held that if there is any serious delay in disposal of the representation, the detention order is liable to be set aside.

Nevertheless, it may be noticed that if the delay is reasonably explained and that by itself is not sufficient to hold that the detenu was bad and illegal."

26 CRI WP 193.2017.odt

27. The Division Bench of this Court in the above cited

case after referring the observations made by the

Supreme Court in the above cited case, in the facts of

the case before it, observed that, the Detaining

Authority has passed exceptionally a detailed and

reasoned order, listing the criminal acts of the detenue

with reference to the details of the statements of

witnesses and the Detaining Authority has also

considered in-camera statements made by the four

witnesses.

28. In the instant case, however, the Detaining

Authority has not verified those statements personally

and verification of the statement made by the Assistant

Commissioner of Police also appears to be under clouds.

In the instant case, the Detaining Authority though

considered the recent case against the petitioner,

appears to have been influenced by his history of which

no details of the same has been supplied to the

petitioner.

29. In a case Santosh s/o Bhagwan Patil Vs. The

27 CRI WP 193.2017.odt

State of Maharashtra reported in 2014 ALL MR(Cri)

53 relied upon by the learned APP, in the facts of the

said case, the Division Bench of this court has observed

that, the sponsoring authority has made endorsement

on in camera statements and in view of that the

sponsoring authority was satisfied in respect of the

truthfulness of the incident narrated by the witnesses

and fear expressed by them. The Division Bench of this

court has also observed that, if the in-camera statement

discloses verification about truthfulness of such

statement and the identity of the person concerned to

the satisfaction of the officer verifying the statement, no

challenge could be entertained on the ground that the

verification was defective.

In the instant case, Detaining Authority has not

verified truthfulness of such statement and identity of

the persons concerned and as such said lacuna goes to

the root of the case.

30. In a case Shri Nasir Ismail Mujavar Vs.

Commissioner of Police, Mumbai and others

reported in 2014 ALL MR (Cri) 639, (supra) relied

28 CRI WP 193.2017.odt

upon by the learned APP, the Division Bench of this

Court has dealt with issue of delay in considering the

detenue's representation. The same is not relevant for

the grounds raised in the present writ petition.

31. We do not find any substance in the ground raised

by the petitioner regarding rejection of the bail of the

petitioner by the Sessions Court in connection with the

said crime no.320/2016. The Detaining Authority in

paragraph no.8 of the grounds of detention has

observed that, though the application for getting release

on bail submitted by the petitioner in connection with

crime no.320/2016 came to be rejected by the

Additional Sessions Judge, Pune, his accomplice namely

Ishwar Gaikwad has been granted bail and since the

offence alleged to have been committed by the petitioner

is not punishable with death sentence, he may be

released on bail. The detaining authority has further

observed that after availing bail facility and become free

person the petitioner may likely to revert to similar

activities.

29 CRI WP 193.2017.odt

32. In a case of Rushikesh Tanaji Bhoite Vs. State of

Maharashtra and others reported in 2012 Cri.L.J.

1334 (supra) relied upon by the learned counsel for the

petitioner, the Supreme Court has observed that, order

of detention or grounds not indicating that detaining

authority was aware of bail order, granted in favour of

the detenu in last of offences registered against him and

as such non placing and non consideration of material

vitiated subjective decision of the detaining authority.

The Supreme Court has also observed that other

offences referred to in order of detention also suffers

from remoteness and want of proximity.

In the instant case, the rejection of the bail

application was brought to the notice of the detaining

authority and considering the fact that accomplice of

the petitioner has been released on bail and also the fact

that offence alleged to have been committed by the

petitioner is not punishable with death, the Detaining

Authority has considered his release on bail at a

subsequent stage.

30 CRI WP 193.2017.odt

33. In a case Abdul Sathar Ibrahim Manik Vs. Union

of India and others reported in (1992) 1 Supreme

Court Cases 1 (supra) relied upon by the learned APP,

the Supreme Court has held that, the detaining

authority's awareness of the fact and existence of

compelling necessity for detention despite the custody of

detenu essential and possibility of detenu's release on

bail and is indulging in prejudicial activity after release

is such a compelling necessity if considered, subjective

satisfaction arrived at by the detaining authority on

proper application of mind on the question of compelling

necessity not open for the judicial review. Similar view

is also expressed by the Division Bench of this Court in

a case Firoz Hyder Shaikh @ Kalya Firoz (supra) relied

upon by the learned APP for the state reported in 2012

(4) Bom CR (Cri) 677.

34. In view of above discussion in foregoing

paragraphs, the impugned order of detention is vitiated

and deserves to be quashed and set aside. Hence,

following order.

                                            31              CRI WP 193.2017.odt

                                       O R D E R 

                      I.       Writ Petition is hereby allowed.

II. Rule is made absolute in terms of prayer clause "B" which reads thus :-

"B. The order of detention bearing No.PCB/DET/3239/2016 dated 8.9.2016 issued under Section 3 of the M.P.D.A., Act, 1981 by respondent No.1 against the petitioner, be quashed and set aside and on quashing the said order of detention, the petitioner be released forthwith."

III. Writ Petition accordingly disposed of.

IV. Original file be returned to the learned APP.

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      ( V.K. JADHAV, J. )                        ( S.S. SHINDE, J. )

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