Bombay High Court
Shri. Shahanawaz Khan S/O. Ismail ... vs The State Of Maharashtra Thr. ... on 3 May, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION No. 41 OF 2017.
Shri Shahanawaz Khan s/o Ismail
Khan, Aged about 44 years,
Occ - Business, resident of
Sanjeevani Colony, Yashodhara
Nagar, Uppalwadi, Nagpur. ....PETITIONER.
VERSUS
1. The State of Maharashtra
through Secretary, Home Department
(Special), Mantralaya,
Mumbai - 32.
2. The Commissioner of Police,
Nagpur City, Nagpur.
3. The Secretary,
Advisory Board (M.P.D.A.& V.P.)
Home Department (Special)
New Administrative Building,
1st Floor, Mantralaya,
Mumbai - 32.
4. Superintendent of Central Prison,
Yerwada Jail,
Pune. ....RESPONDENTS
.
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Ms. V.V. Tiwari, Advocate for Petitioner.
Mr. V.A. Thakare, A.P.P. for Respondents.
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CORAM : B. P. DHARMADHIKARI
& V.M. DESHPANDE, JJ.
DATED : MAY 03, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Ms. V.V. Tiwari, learned Counsel holding for Shri R.R.
Rajkarne, Advocate for petitioner and Shri V.A. Thakare, learned A.P.P. for
respondents.
2. Short submission of learned counsel appearing on behalf of the
petitioner in absence of live link, detention order dated 10.09.2016 cannot
be sustained. She also states that non-application of mind is apparent
because the in-camera statements of Witnesses-B and C relied upon to order
detention are fabricated and false. Those witnesses complain of incidence
taking place in last week of April, 2016, while the petitioner was in custody
from 18.03.2016 to 07.05.2016 in Crime No.55/2016.
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3. Support is being taken from Division Bench judgment dated
09.01.2014 passed in the matter of present petitioner only (Criminal Writ
Petition No. 627/2013) to urge need of live link.
4. Learned A.P.P. is supporting the order. He relies upon the reply-
affidavit and states that offence committed in last week of April, 2016 are
brought on record by two in-camera witnesses and those offences along with
other crimes are looked into. He further adds that even if there is some
substance in the contention that in last week of April 2016, petitioner was
not out of custody, still the other material is sufficient to sustain the
application of mind.
5. In-camera statements are appearing in paragraph no.8 of the
reasons/grounds supplied to the petitioner. In paragraph no.4 earlier crimes
committed by him are mentioned, those crimes are of the years 2010 to
2012. Two preventive actions under Section 110 of Criminal Procedure
Code are of the years 2010 to 2014.
6. Though in paragraph no.9.4 statements find mention. Witness-A
speaks of an incident which has taken place in first week of February, 2016.
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Witness-B speaks of an incident allegedly taken place in last week of April,
2016. Witness-C also speaks of an incident taken place in last week of April,
2016. Witness-D speaks of an incident which has taken place in second week
of March, 2016.
7. Before adverting to these in-camera statements, the detaining
authority has at the end of paragraph no.9 in bold letters recorded that the
Detaining Authority has verified from Assistant Commissioner of Police,
Jaripatka Division, Nagpur and that authority has confirmed whole facts in
statements verified by him.
8. Paragraph no.8.2 is in relation to Crime No.55/2016 under
Sections 420, 447, 506-B of Indian Penal Code registered at Police Station,
Yashodhara Nagar. Paragraph no.8.2.1 shows that petitioner was taken in
custody on 18.03.2016 itself and paragraph no. 8.2.3 shows that he was
enlarged on bail on 07.05.2016. Thus, he was not a free citizen and was in
custody of State from 18.03.2016 till 07.05.2016.
9. The Authority which has ordered detention and claims that has
applied mind, has overlooked this aspect. Thus, facts militating with 2 in-
camera statements of Witnesses-B and C apparent from the impugned order
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have not been looked into by the detaining authority.
10. Learned A.P.P. has made available a sealed envelope containing
those in-camera statements for perusal of this Court. There at the top of
each statement, Witness number as A or B or C or D has been mentioned.
It is apparent that in-camera statement shown as of witness 'C' in paragraph
no.9.3 in the impugned order, is in reality the in-camera statement of
Witness-B in sealed envelope. Similarly, in-camera statement mentioned of
Witness-B in paragraph 9.4 is infact the in-camera statement of Witness-C
taken out from that sealed envelope. Thus, while mentioning witness
numbers also there is mistake and a wrong person has been projected as
Witness-B or Witness-C, as the case may be. This also therefore shows non-
application of mind.
11. Total material available on record has been looked into and it is
apparent from the first sentence in paragraph no.10 of the impugned order
of detention. It mentions that in the light of above offences and incident
mentions in paragraph no.8 to 9.4.3, the Detaining Authority is subjectively
satisfied that the petitioner is a dangerous person as defined under the
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug Offenders, Dangerous Persons Video Pirates, Sand Smugglers and
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Persons engaged in Black Marketing of Essential Commodities Act, 1981.
12. The in-camera statements are recorded either on 11.07.2016 or
on 15.07.2016. They have been verified by the Assistant Commissioner of
Police on 19.07.2016.
13. In view of this material, we find no substance in the contention of
learned A.P.P. that the order of detention can be sustained on the basis of
other material on record. Petitioner was in custody till 07.05.2016. The
incidences sought to be brought on record are either prior to 18.03.2016 or
then of a period during which he could not have indulged in it, as he was in
custody. Events of last week of April, 2016 are apparently relied upon to
show commission of offences in recent past and to substantiate "live link."
Thus, impart of release on bail from custody on 07.05.2016 which needed
due evaluation, also does not figure in the order.
14. As we are satisfied that subjective satisfaction recorded by the
Detaining Authority is unsustainable, we quash and set aside the said order
of detention dated 10.09.2016 passed by the Detaining Authority and later
order dated 14.10.2016 passed by the State Government approving it.
Petitioner be released from custody forthwith, if he is not required in any
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other matter by the State.
15. Writ Petition is allowed. Rule is made absolute in aforesaid terms
with no order as to costs.
JUDGE JUDGE
Rgd.
