Bombay High Court
Bablu @ Pratik Hari Prakshale vs Ranjit Kumar And Ors on 5 May, 2017
Bench: V.K. Tahilramani
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3825 OF 2016
Bablu @ Pratik Hari Prakshale
Age - 23 Years,
Address - At Post Batumbare,
Taluka Pandharpur, District Solapur.
[ At present lodged in Yerwada Central
Prison, Pune ] .. Petitioner
Versus
1. Shri. Ranjit Kumar
District Magistrate, Solapur.
2. The State of Maharashtra
Through the Secretary, Home
Department (Spl) Mantralaya,
Mumbai.
3. The Superintendent,
Yerwada Central Prison, Pune. .. Respondents
...................
Appearances
Mr. Santaram A. Tarale Advocate for the Petitioner
Ms. M.H. Mhatre APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
M.S. KARNIK, JJ.
DATE : MAY 5, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. Heard both sides.
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2. The petitioner / detenu - Bablu @ Pratik Hari Prakshale
has preferred this petition questioning the preventive
detention order passed against him on 30.6.2016 passed by
Respondent No. 1 i.e Shri. Ranjit Kumar, District Magistrate,
Solapur under Section 3(1) 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 (hereinafter referred to as
"MPDA Act") as the detenu is a dangerous person. The said
detention order is based on three incamera statements.
3. Though a number of grounds have been raised in the
present petition whereby the detention order has been
assailed, however, the learned counsel appearing for the
petitioner / detenu has pressed only two grounds before us.
They are grounds (xiv) and (xviii)
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4. The first ground of challenge which is raised is ground
(xiv). In the said ground, the petitioner has set up a specific
case that the incamera statements are false. In this ground,
it is stated that the detaining authority has taken into
consideration statements of three incamera witnesses i.e 'A',
'B' and 'C'. These statements are relied upon by the
detaining authority for arriving at his subjective satisfaction.
In order to rely on the incamera statements, the detaining
authority must be satisfied about truthfulness of statements
made in incamera statements, however, neither in the
detention order nor in the grounds of detention, the
detaining authority has stated anything about being satisfied
about the truthfulness of the statements made incamera.
Hence, it is contended that the detaining order is vitiated.
4a. Mr. Tarale, the learned counsel for the petitioner
submitted that if there is no subjective satisfaction
expressed by the detaining authority in the grounds of
detention regarding genuineness and truthfulness of the
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incamera statements, the detention oder would be vitiated.
In support of this contention, he has placed reliance on the
judgment delivered by the Division Bench of this Court in the
case of Vijaya Raju Gupta Vs Shri R. H. Mendonca &
Ors1. In that case also the order of detention was issued
under the provisions of the MPDA Act. The detaining
authority had based his satisfaction on the incamera
statements to issue the detention order. Mr. Tarale stated
that in the said case, it was observed that the detenu had
taken a specific plea in the petition that the incamera
statements are false and fabricated. It was further observed
that there remains no doubt in the light of the law laid down
by the Apex Court that incamera statement of
person/witness can be utilized by the detaining authority for
the purpose of arriving at subjective satisfaction for passing
the order of detention. However, the Apex Court made it
clear that the facts stated in the materials relied upon should
be true and have a reasonable nexus with the purpose for
which the order is passed. Necessary corrolary, therefore is
1 2001(1) Mh.L.J. 449
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that the detaining authority must be satisfied about the
truthfulness of the statements made in the incamera
statements. Testing it from this touch stone, the Court
found that neither in the detention order nor in the grounds
of detention, the detaining authority has stated anything that
he was satisfied about the truthfulness of the statements
made in incamera statements. Mr. Tarale pointed out that
after observing thus, the detention order was quashed.
5. Mr. Tarale urged that in the present case also just like
in the case of Vijaya Raju, there is no statement in the
grounds of detention that the detaining authority was
subjectively satisfied that the contents of the incamera
statements were true and genuine. He submitted that in
such case, the decision in Smt. Vijaya Raju's case (supra) is
squarely applicable to the facts of the present case and the
detention order should be quashed.
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6. As against this, Ms. Mhatre, the learned APP relied on
the decision of this Court in the case of Zebunnisa Abdul
Majid Vs. M.N. Singh & Ors.2. She pointed out that in the
said case also, there was no averment in the grounds of
detention that the detaining authority believed the incamera
statements were true, however, the detaining authority in
the affidavit had stated that he was subjectively satisfied
that the incamera statements were true. Moreover, from the
verification of the incamera statements by the ACP, it was
clear that after questioning the incamera witnesses, he was
satisfied that the incident was true, hence, the detention
order was upheld. Ms. Mhatre submitted that the judgment
in Vijaya Raju's case (supra) can be distinguished as the
facts in the present case are entirely different. She pointed
out that in the case in hand, just like in the case of
Zebunnisa, there is sufficient indication in the affidavit in
reply filed by the detaining authority that he was personally
satisfied about the truthfulness of the contents of the
incamera statements. She further pointed out that the
2 2001(3) Mh.L.J. 365
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verification of the incamera statements by the SDPO who is
equivalent to the rank of ACP shows that he has questioned
the incamera witnesses and found the statement given by
them to be true, hence, the decision in the case of Zebunnisa
would squarely apply.
7. In the present case, the detaining authority in his
affidavit while denying that the incamera statements were
false and fabricated, has further stated that the incamera
statements were verified by police officer of the rank of Sub-
Divisional Police Officer, Mangalvedha Division, Solapur
('SDPO' for short) and in view of the verification of the in
camera statements made by Senior Police Officer of the rank
of SDPO, he was subjectively satisfied that the contents of
the incamera statements were true and genuine. Learned
APP pointed out that in paragraph 5 of the affidavit of the
detaining authority, the detaining authority has stated that
he was subjectively satisfied that all the materials on which
he had placed reliance were true and genuine. The present
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detention order is only based on three incamera statements,
therefore, the 'material' referred to by the detaining
authority is obviously the three incamera statements.
8. This Court had occasion to go through the decision in
Vijaya Raju (supra) in the case of Zebunnisa Abdul Majid Vs.
M.N. Singh. In Zebunnisa, reference was made to the
decision of the Supreme Court in Smt. Phulwari
Jagdambaprasad Pathak Vs. Shri. R.H. Mendonca &
Ors.3 and it was observed that the decision in the case of
Vijaya Raju (supra) is based on the peculiar facts of that
case. The Division Bench in Zebunnisa observed that the
Supreme Court in Phulwari Pathak (supra) had made it clear
that the incamera statements can be relied upon to issue a
detention order but the materials relied upon by the
detaining authority should be true and have a reasonable
nexus with the purpose for which the order is passed.
Necessary corollary, therefore, is that the detaining authority
must be satisfied about the truthfulness of the statements
3 JT 2000(8) SC 209
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made in the incamera statements. The Division Bench in
Vijaya Raju (supra) referred to the affidavit filed by the
detaining authority wherein he had stated that the incamera
statements were verified by the higher grade police officer of
the rank of ACP and, therefore, he was satisfied that the
contents of the said statements were true. The Court in case
of Vijaya Raju referred to the translation of the verification
made by the ACP below the incamera statements which read
"my statement was translated to me in Hindi which is in
accordance with what I stated". In the case of Vijaya Raju,
the Court, therefore, concluded that the ACP had only
verified that the statements made by the witnesses were
recorded as per their say. The ACP had not verified the
truthfulness of the contents of the said statements.
Therefore, the detaining authority could not have relied upon
this verification. This was more so because there was no
contemporaneous document or material in support of this
verification. The Court further observed that no such
statement was made in the grounds of detention that the
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statements made in the incamera statements were believed
to be true. On these facts in the case of Vijaya Raju, it was
concluded that it was difficult to hold that the detaining
authority was in fact subjectively satisfied that the assertions
made in the incamera statements were true. However, in
the case of Zebunnisa though no subjective satisfaction was
expressed in the grounds of detention about truthfulness of
the incamera statements, such subjective satisfaction was
expressed in the affidavit of the detaining authority. In
Zebunnisa, it was observed that from the verification of the
ACP, it is clear that after questioning the incamera witness,
the ACP was satisfied that the incident narrated by the
incamera witness was true, hence, the detention order was
upheld.
9. In view of the above, we find no difficulty in rejecting
Mr. Tarale's submission. It is true that in Smt. Phulwari's case
(supra), the Supreme Court has observed that material relied
upon by the detaining authority should be true and should
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have a reasonable nexus with the purpose for which the
detention order is passed. It is, however, not laid down
therein that the detaining authority should expressly state in
the grounds of detention that he had verified the contents of
incamera statements and found them to be true. Mr. Tarale
made an effort to deduce this proposition from the
observations of this Court in the judgment in Vijaya Raju's
case that "on the basis of mere verification without there
being something more by way of contemporaneous
documents or material more over when no such statement is
made in the grounds of detention that the statements made
in camera were believed to be true, it is very difficult to hold
that the detaining authority was in fact subjectively satisfied
that the assertions made in the incamera statements were
true". In our opinion, this observation of the Division Bench in
Vijaya Raju is being torn out of context. In the facts of that
case the detaining authority in his affidavit had stated that
the in camera statements were verified by the higher grade
police officer of the rank of ACP. In the subsequent affidavits,
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he had expressed his satisfaction that the contents of the in
camera statements were true and genuine because they
were verified by the ACP. However, the English translation of
the verification made by the ACP below the incamera
statements, made it amply clear that the ACP had not
verified the truthfulness of the contents of the statements.
He had merely verified that the statements of the witnesses
were recorded according to their say. Obviously, therefore, it
could not be said that the ACP had verified the truthfulness
of the contents of the in camera statements.
10. If the ACP had himself not verified whether the contents
of the incamera statements were true, the detaining
authority could certainly not have recorded his satisfaction
on the basis, thereof that the contents of the said
statements were true. The observation of this Court in Vijaya
Raju's case (supra) on which Mr. Tarale has placed reliance
will have to be read against this background. No conclusion
can be drawn from it that in all cases the detaining authority
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must aver in the grounds of detention that he was
subjectively satisfied about the truthfulness of the contents
of the in camera statements. In fact in the decision of the
Supreme Court in the case of State of Gujarat v. Sunil
Fulchand Shah & Anr.4, the Supreme Court has stated
that, it is not necessary for the detaining authority to
mention in the grounds of detention his reaction in relation
to every piece of evidence placed before him. Similar view
has been taken by the Division Bench of this Court in
Criminal Writ Petition No. 542 of 1995 delivered on 7th
June, 1996/11.6.1996.
11. Besides, the affidavit filed in the case on hand is
entirely different from the one which was filed in Vijaya
Raju's case (supra). In the present case in the affidavit, the
detaining authority has clearly stated that the SDPO had
personally got it confirmed from the incamera witnesses that
their statements were correctly recorded. The SDPO was
satisfied after making enquiries with the incamera witnesses
4 AIR 1988 SC 723
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that the incidents mentioned by the witnesses were true. The
detaining authority had relied upon this verification made by
the SDPO. In the opening paragraphs of his affidavit, the
detaining authority has specifically stated that he was further
satisfied that all the material on which he placed reliance
was true and genuine. The only material relied upon in the
present case is three incamera statements, hence, obviously,
the reference was made to the three incamera statements
and it was stated that they were true and genuine.
Thereafter, in paragraph 18 of the affidavit, the detaining
authority has stated as under:-
"...... I say that the incamera statements of witness A, B and
are true and genuine statements. I say that the incamera
statements were recorded by the Sponsoring Authority and the
same was verified by the Sub-Divisional Police Officer,
Mangalvedha Division, Solapur, hence, the said incamera
statements are true and genuine. I deny that the incamera
statements are false, vague and baseless....."
These averments made in the affidavit make it amply
clear that verification done in the present case is about the
truthfulness of the contents of the incamera statements.
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12. That the SDPO had verified whether the contents of the
incamera statements are true or not can be ascertained from
the noting found at the end of the incamera statements.
Noting found at the end of in camera statements of
witnesses shows that the SDPO had verified the truthfulness
of the said incamera statements and the contents thereof
were found to be true.
13. As stated earlier the post of SDPO is equivalent to the
post of ACP. From the above verification, it is clear that the
SDPO after questioning the witnesses was satisfied about the
fact that the incidents narrated by them were truthful. It is
on this verification that the detaining authority has placed
reliance and, we find nothing wrong with it. It is not even Mr.
Tarale's case that the detaining authority should personally
question the witnesses and satisfy himself about the
truthfulness of the contents of the statements. In the nature
of things, the detaining authority cannot undertake such
exercise personally and has to place reliance on a senior
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officer like the SDPO. In this case that is exactly what he
has done. To us his subjective satisfaction based on SDPO.'s
verification about the truthfulness of the contents of the in
camera statements appears to be genuine.
14. This Court in the case of K.B. Babu Menon Vs. R.H.
Mendonca & Ors5. had occasion to consider a case exactly
similar to the present one. In that case, the affidavit of the
detaining authority is on similar lines and the Court had
come to the conclusion that the detaining authority was
satisfied about the truthfulness of the incamera statements.
The judgment in Vijaya Raju's case (supra) was distinguished
by the Court by holding that the observations of the Court
therein were confined to the facts with which it was
concerned. We are In respectful agreement with this view.
We have, therefore, no hesitation in observing that in the
present case, the detaining authority was subjectively
satisfied about the truthfulness of the contents of the
incamera statements and hence reliance placed on them
5 Criminal Writ Petition No. 109 of 2000 decided on 13.2.2001
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cannot be faulted on that count. We also hold that not
expressing subjective satisfaction about the truthfulness of
the statements of the incamera witness in the grounds of
detention would not vitiate the detention order if the
necessary subjective satisfaction is expressed in the affidavit
of the detaining authority.
15. Thereafter, Mr. Tarale raised ground (xviii). In the said
ground it is stated that the incident narrated in the incamera
statement of witness B has taken place on 8.12.2015 and
the incident in relation to incamera witness C has taken
place on 9.11.2015, however, in the grounds of detention,
the date of incident relating to incamera witness B is stated
as 28.12.2015 and the date of incident relating to witness
is stated as 29.11.2015. In case of incamera witness 'B'
instead of '8', the date is mentioned as '28' and in case of
incamera witness 'C' instead of '9', the date is mentioned as
'29'. Thus, it is submitted that there is non application of
mind on the part of the detaining authority and the
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detaining authority has made a faulty order, hence,
detention order cannot be sustained.
16. The detaining authority in his affidavit denied that the
detaining authority without application of mind, committed
gross error in the grounds of detention by quoting wrong
dates in respect of alleged incidents narrated by the witness
B and C respectively. It is stated that witness B and C in
their statements dated 10.6.2016 have narrated the
incidents dated 8.12.2015 and 9.11.2015 respectively. But
in the grounds of detention, same was quoted as 28.12.2015
and 29.11.2015 due to typographical mistake. The said
minor typographical error does not amount to non-
application of mind on his part. The detenu has been
furnished the said incamera statements wherein the correct
date of incidents have been stated.
17. Ms. Mhatre relied on the decision of this Court in the
case of Ranjana w/o Ganesh Shripatre Vs. State of
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Maharashtra6 . She placed reliance on paragraphs 14 and
15 therein. In the said case also, wrong date about the
incident was mentioned and it was contended that on
account of this wrong mentioning of date, detention order
would be vitiated. In the case of Ranjana Shripatre, the
respondents in their affidavit in reply had explained that it
was a typographical and inadvertent error in stating wrong
date of incident. It was held in the case of Ranjana that this
lapse would not ultimately vitiate the detention order.
18. Learned APP submitted that on account of this small
typographical error, it cannot be said that there was non-
application of mind on the part of the detaining authority and
hence, the detention order would not be vitiated. As stated
earlier the incamera statements of the incamera witnesses
'B' & 'C' have been furnished to the detenu. They give the
same details as those given in the grounds of detention
except for typographical error in relation to date. Thus, it it
seen that as far as the said incidents are concerned, all the
6 2011(6) Mh.L.J. 551
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basic facts have been communicated to the detenu, hence,
the ground on which the detaining authority has relied upon,
has been conveyed to the detenu. A minor discrepancy due
to typographical error referred to above would not vitiate
the order of detention.
19. After carefully considering the submissions advanced
before us by the learned counsel for the parties, according to
us, the detention order is not vitiated and consequently,
there being no merit in the present petition, the same is
dismissed. Rule is discharged.
[ M.S. KARNIK, J. ] [ SMT. V.K. TAHILRAMANI, J. ]
