Gokul Sahabrao Sabale vs The Commissioner Of Police Pune ...
2017 Latest Caselaw 1263 Bom

Judgment                                                                           wp958.16

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



                 CRIMINAL WRIT PETITION  No. 958 OF 2016.

      Gokul Sahabrao Sabale,
      Aged 33 years, residing at
      Old S.No. 165, Near Old
      Dagadi Haud, Malwadi
      Hadapsar, Pune.                                            ....PETITIONER.

                                       VERSUS

  1. The Commissioner of Police,
     Pune.

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

  3. The Superintendent,
     Amravati Central Prison,
     Amravati.                                                   ....RESPONDENTS
                                                                                . 


                         ----------------------------------- 
      Mr. U.N. Tripathi, with Shri R.R. Vyas, Advocates for Petitioner.
         Mr. M.J. Khan,  Addl. Public Prosecutor for Respondents.
                         ------------------------------------


                                   CORAM :  B. P. DHARMADHIKARI
                                                 & V.M. DESHPANDE, JJ.

DATED : MARCH 29, 2017.

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

When this Writ Petition was listed before this Court for admission

on 20.12.2016, the Court issued notice for final disposal and the same was

made returnable on 12.01.2017. Thereafter, the matter was adjourned from

time to time and in the meanwhile, respondent no.1 Commissioner of Police,

Pune City and respondent no.2 Deputy Secretary, Government of

Maharashtra, Home Department (Special), filed their affidavit on record.

Today the matter was taken up for admission and since the matter was for

final disposal, the Court has issued Rule and it is taken up for final hearing

by consent of both the parties.

2. Heard Shri U.N. Tripathi, learned Counsel with Shri R.R. Vyas,

learned counsel for the petitioner and Shri M.J. Jain, learned Addl. Public

Prosecutor for respondents.

3. By filing the present Writ Petition, the petitioner is seeking

quashment of order of detention bearing No. PCB/DET/3433/2016 dated

03.10.2016 passed by respondent no.1 i.e. the Commissioner of Police, Pune

under Section 3 of the Maharashtra Prevention of Dangerous Activities of

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Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates,

Sand Smugglers and persons engaged in Black-marketing of Essential

Commodities Act, 1981(hereinafter referred to as "the MPDA Act" for short)

4. The detention order dated 03.10.2016 was served upon the

petitioner alongwith the grounds of detention. The petitioner availed the

opportunity of making representation to the State Government for

revocation of order of detention as pointed out to him by the Detaining

Authority. The representation is dated 21.10.2016 and the said

representation was rejected by the State Government vide order dated

29.11.2016.

5. In view of the order of detention and subsequent rejection of his

representation by the State Government, the petitioner is before this Court.

6. Though various grounds are raised in the memo of Petition, at the

time of hearing, the learned Counsel for the petitioner firstly invited our

attention to ground No. (h). By the said ground, it is the submission of

learned counsel for the petitioner that there is no "satisfaction" of the

Detaining Authority/respondent no.1, as recorded in the grounds of

detention to the effect that the Detaining Authority has verified the in-

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camera statements and satisfied about the truthfulness of the incidents

narrated in those statements. It is further submitted that it was obligatory

on the part of the Detaining Authority to get itself satisfied about the same,

since it is condition precedent. According to the learned counsel, in absence

of the same, the order of detention must go. It is the further submission of

the learned counsel for the petitioner that at no point of time the Detaining

Authority has seen the in-camera statement, as according to him, copies of

the statements which were supplied to him do not reflect that those

statements were counter signed by the Detaining Authority. He further

submitted that there is no material available on record in as much as, the

material supplied to the petitioner along with the grounds of detention, that

those in-camera statements were considered by the Detaining Authority

independently and separately. He relies on the decision of this Court, to

which both of us are party i.e. Criminal Writ Petition No. 768/2015

(Sanjay Ramlal Shahu .vrs. State of Maharashtra and another) dated

01.02.2016 and case reported in 2017 All MR (Cri) 416 (Deepak Dattu

Suryawanshi .vrs. The Commissioner of Police, Pune City and others)

and another decision reported in 2016 All MR (Cri) 4233 (Shahjahan

Kalimkhan Samshadkhan Pathan .vrs. State of Maharashtra and others).

7. Though other grounds are also raised in the memo of Writ

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Petition, after hearing the learned counsel for the petitioner in respect of

ground no. (h), we are satisfied that the present Writ Petition needs to be

allowed on the said ground itself, and therefore, we are not going to

examine the other grounds raised by the petitioner.

8. The grounds of detention in paragraph no.9 reads as under :

"The Assistant Commissioner of Police, City Division, Pune has verified the truthfulness and genuineness of the witnesses 'A', 'B' 'C' and submitted a report to me. In the said report, the Assistant Commissioner of Police, City Division, Pune has mentioned that the facts given in the written statements and apprehension entertained by the Witnesses 'A', 'B' and 'C' therein are true and reasonable. After perusing the said report, I am satisfied that the facts given in statements and apprehension entertained by the Witnesses 'A', 'B' and 'C' are true and reasonable."

9. The learned Additional Public Prosecutor has produced original

records before this Court for perusal. We have seen original in-camera

statements of witnesses 'A', 'B' and 'C'. Reverse/backsides of those 3

statements, show that the Assistant Commissioner of Police, Pune has

verified the statements and has signed the same. However, the learned

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Addl. P.P. also invited our attention to report dated 09.09.2016 submitted by

the Assistant Commissioner of Police, Pune City who has forwarded the in-

camera statement to the Detaining Authority. The said report shows that

after verification of the in-camera statements, the Assistant Commissioner of

Police is satisfied that the statements of facts made by those three witnesses,

whose statements are recorded in in-camera are true.

10. Submission on behalf of petitioner is that though these three in-

camera statements are verified by the Assistant Commissioner of Police,

those statements were not verified by the Detaining Authority. He further

submitted that from the record it appears that those statements were not

before the Detaining Authority.

11. After perusal of the record, it is clear that those three statements

sans an endorsement of the Detaining Authority/respondent no.1 that

respondent no.1 has personally seen those statements and was satisfied, in

respect of its contents and truthfulness. In that view of the matter, the

decision cited before us applies in the present case with its full force. In

Sanjay Ramlal Shahu .vrs. State of Maharashtra and another (supra), this

Court has specifically recorded a finding that reproduction of contents of

those statements cannot show subjective satisfaction envisaged in law. The

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subjective satisfaction has to be about unwillingness of such persons to come

forward and to give statement against the petitioner. Since there was no

whisper about this aspect in the impugned order, the order was set aside. In

the present case also the impugned order does not reflect the same.

12. Further perusal of verification of Assistant Commissioner shows

that in so far as statements 'A' 'B' is concerned, he found that the witnesses

therein disclosed their fear and requested the verifying authority that their

identity should not be disclosed to any body or any where. However in so

far as the in-camera statement of witness 'C' is concerned, there is no such

request recorded by verifying authority. Thus, it is clear that in so far as the

witness 'C' is concerned, there was no material before him or then the

Detaining Authority that he was terrified by the acts of petitioner, and

therefore, his identity needed to be kept secret. Assistant Commissioner of

Police appears to have prepared his report mechanically.

13. Further disturbing fact that is noticed by us while perusing the

original record shows that the matter was also placed before the Joint

Commissioner, as can be seen from the note written in the handwriting by

the Joint Commissioner on 27.09.2016. The report of the Assistant

Commissioner of Police in respect of verification, which was submitted by

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him to the Commissioner of Police is dated 09.09.2016. Thus, that report

precedes a note recorded by the Joint Commissioner. Perusal of the said

original shows that there is no mention by the Joint Commissioner in respect

of verification done by the Assistant Commissioner of Police. Further the

said Joint Commissioner of Police only states that he has seen the three in-

camera statements. It is to be noted that though in the said note the Joint

Commissioner has recorded that he has seen the three in-camera statements,

the originals of three in-camera statements does not reflect any such noting

by the Joint Commissioner, that the Joint Commissioner has seen those three

statements. Error committed by Assistant Commissioner of Police mentioned

by us supra, though apparent is not noted by the Joint Commissioner of

Police.

14. After recording the note dated 27.09.2016, the record shows that

the Joint Commissioner marked the file to the Commissioner of

Police/Detaining Authority. Remark of Commissioner is dated 03.10.2016,

which coincides the order of Detention. The note is in handwriting of the

Commissioner. The said note is totally silent about the noting by the Joint

Commissioner in respect of the report submitted by the Assistant

Commissioner of Police. Further it is first appreciation by Commissioner

evidenced in handwriting of Commissioner. However, the note is

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completely silent that the Commissioner has verified the in-camera

statements or the report of Assistant Commissioner of Police dated

09.09.2016. This handwritten note of Commissioner of Police or of Joint

Commissioner of Police is not supplied to the petitioner. Petitioner is,

therefore, not aware of its existence.

15. The Original record shows that the note prepared by the

Commissioner of Police is first in time and that time the Commissioner has

decided to invoke the powers under Section 3 of the MPDA Act, therefore, it

will be an order or detention and if that be so, it ought to reflect the

complete application of mind by the Detaining Authority. If the Detaining

Authority himself fails to verify the truthfulness of the incidents stated by

the witnesses in in-camera statement in this order, the same is fatal, as

been observed in the aforesaid three judgments.

Therefore, in our view the present Writ Petition is required to be

allowed and accordingly Rule is made absolute in terms of prayer clause

(b). It is ordered that the petitioner be released forthwith, if he is not

required for any other offence or in any other proceedings. No costs.

                            JUDGE                                          JUDGE


Rgd.