Shaikh Hafiz Shaikh Yusuf vs The Commissioner Of Police And ...
2017 Latest Caselaw 7907 Bom

                                                               561.17WP.odt
                                        1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 561 OF 2017 

          Shaikh Hafiz Shaikh Yusuf
          Age : 31 years,
          R/o Near Bilal Masjid, 
          Vishnunagar, Javahar Colony, 
          Aurangabad, Dist. Aurangabad. 
                                                     ..PETITIONER 
                   VERSUS 

          1.       The Commissioner of Police, 
                   Aurangabad, Dist. Aurangabad. 

          2.       The State of Maharashtra
                   Through Addl. Chief Secretary, 
                   Home Department (Special), 
                   Mantralaya, Mumbai - 32. 

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

                                ...
          Mr.U.N.   Tripathi   with   Mr.   R.D.   Sanap, 
          Advocates for the petitioner. 
          Mr. M.M. Nerlikar, APP for Respondent/State

                          CORAM:  S.S.SHINDE & 
                                  A.M. DHAVALE,JJ.     

Reserved on : 14.09.2017 Pronounced on : 09.10.2017

JUDGMENT: (Per S.S.Shinde, J.):

Rule. Rule made returnable forthwith

561.17WP.odt

and heard finally with the consent of learned

counsel appearing for the parties.

2. This Writ Petition is filed with the

following prayers :-

"B. By issuing writ of mandamus or writ of habeas corpus, order or directions in the like nature, kindly quash and set aside the order dated 01/03/2017 passed by the respondent no.1, bearing No. 2017/MPDA/DET-1/CB- 02 under Section 3(2) of the M.P.D.A. Act, 1981 and for that purpose issue necessary order and kindly be release the petitioner forthwith.

B-1. The confirmation order dated 10th April, 2017 issued by the State Government, confirming the order of detention issued by respondent no.1 be quashed and set aside."

3. At the outset learned counsel

appearing for the petitioner informs this

561.17WP.odt

Court that, he is restricting his arguments

to ground No.(e), the ground Nos.(i) and (j)

(inserted by way of amendment) in the Writ

Petition.

4. Learned counsel appearing for the

petitioner submits that, the copies of three

in-camera statements of witnesses "A", "B"

and "C" do not bear any endorsement or

signature of the Commissioner, so also the

same were not seen by the Commissioner. What

is found on the copies of in-camera

statements of the witnesses supplied to the

detenu is, there are only initials of Deputy

Commissioner of Police (Zone-II), Aurangabad

(City) and the Police Inspector (Crime).

However, there is no endorsement of the

Commissioner. As such, the Commissioner of

Police has not even seen the in-camera

statements, which amounts to non-verification

of three in-camera statements, which are

561.17WP.odt

relied upon by the detaining authority for

arriving at his subjective satisfaction and

passing the impugned order of detention.

Learned counsel submits that, even assuming

that, the verification is done by the

Commissioner of Police, Aurangabad (City),

the copies of such verified statements of

witnesses were not furnished to the detenu.

Therefore, it amounts to non-communication of

verification of the detaining authority and

also non-supplying the documents to the

detenu. As such, the right of the petitioner

to make effective representation guaranteed

under Article 22(5) of the Constitution of

India is violated.

5. Learned counsel submits that, the

detaining authority has taken into

consideration three in-camera statements of

witnesses "A", "B" and "C", and relied upon

the same for arriving at his subjective

561.17WP.odt

satisfaction and passed the impugned order of

detention. If the three incidents narrated in

three in-camera statements are minutely

examined in its proper perspective, by no

stretch of imagination, a prudent man can

come to the conclusion that as a result of

the alleged prejudicial activities of the

detenu, as narrated in those statements,

public order is disturbed. Learned counsel

submits that, in all the three statements,

the act is attributed towards individual

demanding money, and hence the same is

necessarily between the witnesses and the

detenu. As incidents have not taken place in

a crowded areas in presence of public i.e. in

public view, due to which the public got

scared and ran away out of fear. Neither the

tempo of life of society nor a segment of

society is disturbed. Moreover, there is no

immediate effect and impact of the incidents

on the public at large. Learned counsel

561.17WP.odt

further submits that, the law is well settled

that, the incidents may be grievous and

potential but `public order' cannot be held

to be affected unless the effect and impact

of incidents have reached the society at

large. Learned counsel submits that, if the

public order is not disturbed as a result of

three incidents, such statements cannot be

considered and relied upon for arriving at a

satisfaction and for passing the order of

detention. Therefore, learned counsel submits

that, the order of detention is illegal, bad

in law, and hence is liable to be quashed and

set aside. Learned counsel appearing for the

petitioner placed reliance on the judgments

of Supreme Court as well as High Courts in

the cases of Cherukuri Mani W/o Narendra

Chowdari V. Chief Secretary, Government of

Andhra Pradesh and Ors.1, Lahu Shrirang

Gatkal V/s State of Maharashtra, through the

1 AIR 2014 SC 2090

561.17WP.odt

Secretary and Ors in Criminal Appeal No.

1185/2017, Vijaya Raju Gupta (Smt.) V/s R.H.

Mendonca, Commissioner of Police & others 2,

Rushikesh Tanaji Bhoite V/s State of

Maharashtra & Ors.3, Hemlata Kantilal Shah

(Smt.) V/s State of Maharashtra & another4,

Tushar S/o. Rajansingh Rajput V/s The State

of Maharashtra and others in Criminal Writ

Petition No. 1698 of 2016 decided on 3rd

April, 2017, Mrs. Mrunali Virendra Lonare V/s

Commissioner of Police and Others in Criminal

Writ Petition No.245 of 2014 decided on 18th

March, 2014, Deepak S/o Dattu Suryawanshi V/s

The Commissioner of Police, Pune City & Ors 5,

Ravindra S/o. Shankar Kamble V/s The State of

maharashtra & Anr.6, Thahira Haris etc. Vs.

Government of Karnataka & Ors.7, Jay @ Nunya

Rajesh Bhosale V/s The Commissioner of

2 2001 (Supp.1) Bom.C.R. 24 3 2012 AIR (SC) 890 4 1982 (2) Bom.C.R. (S.C.) 218 5 2017 All MR(Cri) 416 6 2017 All MR (Cri.) 422 7 2009 All MR (Cri) 3451 (S.C.)

561.17WP.odt

Police, Pune & Ors.8, and Shri Sandeep @

Shankar Vasant Khalase V/s The Commissioner

of Police and others in Criminal Writ

Petition No. 193 of 2017 decided on 29th

March, 2017. Learned counsel appearing for

the petitioner, therefore, relying upon the

averments in the Petition, grounds taken

therein and annexures thereto, submits that,

the Petition may be allowed.

6. On the other hand, learned A.P.P.

appearing for the respondent-State, relying

upon the additional affidavit in reply filed

on behalf of respondent no.1, submits that,

considering the seriousness of the offences

registered against the petitioner, the Police

Inspector of Police Station, Jawaharnagar,

Aurangabad conducted confidential inquiry. In

the said inquiry, it was revealed that, due

to fear of the petitioner, nobody is coming

8 2015 All MR (Cri) 4437

561.17WP.odt

forward to give the statements openly against

him. On the assurance that, names of the

witnesses and also their identity would be

kept secret, and they would not be called

upon to give evidence openly against the

petitioner in any court or any before other

forum, the witnesses namely "A", "B" and "C"

have disclosed the acts of the petitioner in

their statements. The Police Inspector of

Police Station, Jawaharnagar at Aurangabad,

recorded the in-camera statements of the

witnesses. After completion of confidential

inquiry, the Police Inspector of Police

Station, Jawaharnagar submitted the proposal

to the detaining authority for taking action

under section 3(1) of the Act through

concerned ACP, Osmanpura Division and DCP

(Zone-II), Aurangabad.

7. Learned A.P.P. submits that, the

Deputy Commissioner of Police (Zone-II),

561.17WP.odt

Aurangabad, had verified the statements of

witnesses and submitted the report to the

respondent no.1. In the said report, the

Deputy Commissioner of Police (Zone-II),

Aurangabad, has mentioned that the facts

given in the statements and apprehension

disclosed by the witnesses is true and

reasonable. After perusing the said report,

the detaining authority satisfied that, the

facts given in the statements and

apprehension expressed by the witnesses "A",

"B" and "C" is true and reasonable. Learned

A.P.P. submits that, the contention of the

petitioner that the copies of the documents

are not furnished is incorrect. All the

copies of documents relied upon by the

detaining authority were supplied to the

detenu. Learned A.P.P. submits that, whatever

is written in the noting has already been

stated in the grounds of detention. Learned

A.P.P. further submits that the identical

561.17WP.odt

issue was raised in Criminal Writ Petition

No. 1698/2016 (Tushar S/o Rajansingh Rajput

V/s The State of Maharashtra and others), and

the said issue has been settled by the High

Court by its judgment and order dated 3rd

April, 2017.

8. We have heard learned counsel

appearing for the parties at length. With

their able assistance, we have perused the

grounds taken in the Petition, annexures

thereto, grounds of detention, the impugned

order, affidavit in reply of respondent no.1

and additional affidavit in reply, and the

original record made available for perusal by

the learned A.P.P.

9. We have carefully perused the

original record in relation to the detention

of the petitioner maintained by the office of

the Commissioner of Police, Aurangabad. Upon

561.17WP.odt

careful perusal of the original copies of the

in-camera statements of the witnesses

recorded by the Police Inspector, Police

Station, Jawaharnagar, Aurangabad (city), it

is seen that, the statements of three

witnesses have been recorded on 1st February,

2017 and 2nd February, 2017. The said

statements have been duly signed by the

Police Inspector, Police Station

Jawaharnagar, Aurangabad (city). The said

statements are also verified by the Deputy

Commissioner of Police (Zone-II), Aurangabad

(city). The said Deputy Commissioner of

Police (Zone-II), Aurangabad (city) has noted

on the statements of the witnesses that, he

has examined those witnesses and apprehension

expressed by those witnesses is true and

reasonable. It is not in dispute that, the

copies of the statements of the witnesses

duly signed by the concerned Police Inspector

and the Deputy Commissioner of Police, served

561.17WP.odt

upon the petitioner - detenu. Upon careful

perusal of the original record, we find that,

there is detail note written by the

Commissioner of Police, wherein it is written

that, the Deputy Commissioner of Police

(Zone-II) has personally verified the

statements of the witnesses "A", "B" and "C".

After going through the record, we have

noticed that, the Commissioner of Police has

recorded the subjective satisfaction that,

the facts given in the in-camera statements

of the witnesses and apprehension expressed

is true and reasonable. It is not in dispute

that, the Assistant Commissioners of Police

and the Deputy Commissioners of Police are

authorized by the Home Department, Government

of Maharashtra by issuing circular dated 19th

September, 2002, to verify the in-camera

statements of the witnesses recorded in the

proceedings under the Maharashtra Protection

of Interest of Depositors (in Financial

561.17WP.odt

Establishments) Act, 1999 and the National

Security Act, 1980.

10. Even in compilation of the Petition,

at Exhibit-B Page No.14 in ground no.11, it

is stated thus:-

"11........ The normal laws are just

not sufficient to curb your criminal

and dangerous activities as the

witnesses are unwilling to come

forward and depose against you. From

the above mentioned instances, I am

satisfied that you have created a

terror in the mind and psyche of the

members of the above mentioned

localities thereby disturbing their

routine life adversely affecting the

public order in the said localities;

for which the normal penal laws have

failed to curb your unlawful

561.17WP.odt

activities and therefore, there is no

other alternative before me but to

detain you under 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".

Further in ground no.12, it is stated

thus:-

"12......... Deputy Commissioner of

Police (Zone-II), Aurangabad has

verified the witnesses "A", "B" and "C"

and submitted a report to me. In the

said report Deputy Commissioner of

Police (Zone-II), Aurangabad has

mentioned that the facts given in the

statements and apprehension entertained

561.17WP.odt

by the witnesses "A", "B" and "C" are

true and reasonable. After perusing the

said report I am satisfied that the

facts given in the statements and

apprehension entertained by the

witnesses "A", "B" and "C" is true and

reasonable."(Underlines added)

11. Therefore, upon careful perusal of

the original record and also the grounds of

detention, we are satisfied that, all the

procedural formalities have been complied

with and all the necessary steps have been

taken by the Respondent Authorities. The

Supreme Court in the case of Khudiram Das V/s

The State of West Bengal and others 9 held

that, it must in the circumstances be held

that, the subjective satisfaction of the

detaining authority as regards these matters

constitutes the foundation for the exercise

9 (1975) 2 SCC 81

561.17WP.odt

of the power of detention and the Court

cannot be invited to consider the propriety

or sufficiency of the grounds on which the

satisfaction of the detaining authority is

based. The Court cannot, on a review of the

grounds, substitute its own opinion for that

of the authority. The power of detention is

not a quasi-judicial power.

12. Therefore, it is not for this Court

to consider the propriety or sufficiency of

the grounds on which the satisfaction of the

detaining authority is based, when we have

recorded our satisfaction that, in-camera

statements of the witnesses are duly verified

by the Deputy Commissioner of Police and the

Commissioner of Police, Aurangabad has

subjectively satisfied that, the facts given

in the in-camera statements of the witnesses

and apprehension expressed is true and

reasonable.

561.17WP.odt

13. The facts of the cases cited by

learned counsel appearing for the petitioner

are in different facts scenario, in as much

as, neither there was satisfaction recorded

by the detaining authority nor his

satisfaction was reflected through any ground

of detention or in detention order. As

already observed in the present case, the

Commissioner of Police arrived at a

subjective satisfaction that the facts given

in the statements of the witnesses and

apprehension expressed is true and

reasonable. In addition to the said

statements, the detaining authority has also

relied upon the offences pending against the

petitioner. There is reference of one

criminal case vide C.R. No. 88 of 2015 under

Sections 353, 332, 147, 149, 323, 188, 504,

506 of the Indian Penal Code read with

section 135 of the Bombay Police Act lodged

561.17WP.odt

against the petitioner.

14. In the light of the discussion in

the foregoing paragraphs, viewed from any

angle, in our opinion, in the peculiar facts

and circumstances of this case, there is no

need to interfere in the impugned order

passed by the Respondent No.1. Hence the

Petition is devoid of any merits, and same

stands rejected. Rule stands discharged

accordingly.

              [A.M.DHAVALE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          SGA