Bombay High Court
Manoj @ Sonya S/O. Ramdas Ghule vs The Commissioner Of Police Pune ... on 4 September, 2017
Bench: S.S. Shinde
1 WP545.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 545 OF 2017.
Manoj @ Sonya S/o Ramdas Ghule,
Age : 25 years, Original R/o. Disha Heights,
Flat No. C/302, Tapkirnagar, Dehu Phata,
Alandi, Dist Pune
Presently detained at Central Prison,
Aurangabad. ... Petitioner
VERSUS
1. The Commissioner of Police
Pune City, Dist. Pune.
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, Advocate for the petitioner
Mrs P. V. Diggikar, APP for respondent/State
.............
CORAM : S. S. SHINDE &
A. M. DHAVALE, JJ.
RESERVED ON : 11.08.2017.
PRONOUNCED ON : 04.09.2017.
JUDGMENT (Per A. M. Dhavale, J.) :
1. This is a petition filed under Articles 14, 19, 21, 22 and 226
of the Constitution of India and under the provisions of the
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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") for
issuance of writ of habeus corpus and thereby quashing the order of
preventive detention passed against the petitioner by Commissioner
of Police, Pune, on 08.02.2017.
2. The Commissioner of Police, Pune, on 08.02.2017, in
exercise of powers conferred by section 3(2) of the MPDA Act and
delegated to her by the Government, passed the impugned order of
detention of the petitioner and on the same day separate order for
committal of the petitioner to the Central Prison at Aurangabad was
also passed. The grounds of detention dt. 08.02.2017 were annexed
and supplied to the petitioner on 11.02.2017. In short, the petitioner
was indulging in dangerous activities like terrorizing the people by
forming an association of hooligans and using deadly weapons such
as pistol, sword, skythe, sattur & knife and robbing persons so that
nobody should lodge any complaint or give statement against them.
Following is the list of cases registered against the petitioner, out of
which five are pending and two chapter cases were initiated against
him.
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Offences
Sr. Police Station Cr.No. Sections of law Date & time of Date and Status
No. registration time of arrest
1 Vishranthwadi 267/2012 U/s 324, 323, 504, On On Court
427, 34 of the IPC 21/09/2012 24/09/2012 Pending
at 09.30 hrs. at 11.30 hrs.
2 Vishranthwadi 115/2013 U/s 324, 506(1), 34 On On Court
of the IPC 25/03/2013 17/06/2013 Pending
at 21.40 hrs. at 21.40 hrs.
3 Vishranthwadi 169/2014 U/s 307, 34 of the On On Court
IPC; r/w sec. 3/25, 25/05/2014 27/05/2014 pending.
4/25 of the Arms Act, at 23.30 hrs. at 16.45 hrs.
4 Dighi 196/2016 U/s 143, 144, 147, On On Court
148, 149, 337 of the 01/12/2016 1/12/2016 pending.
IPC; r/w sec. 3/25 of at 02.00 hrs. at 08.00 hrs.
the Arms Act, 1959.
5 Dighi 3002/2017 U/s 4/25 of the Arms On On Under
Act, 1959; r/w sec. 10/01/2017 10/01/2017 investigat
37(1)(3)/135 of the at 20.00 hrs. at 19.30 hrs. ion.
Maharashtra Police
Act, 1951.
Preventive Actions
Sr. Police Station Chapter Case Sections of law Status
No. No.
1 Vishrantwadi Chapter case U/s 107 of the On 23/11/2012, you had executed
no. 188/2012 Cr.P.C. a final bond of Rs. 5,000/- with one
surety in the like amount for
keeping peace for a period of one
year with Spl. Executive Magistrate,
Khadki Divn., Pune City.
2 Dighi Chapter case U/s 110(e)(g) of On 30/09/2016, you had executed
no. 15/2016 the Cr.P.C. a final bond of Rs. 10,000/- with
one surety in the like amount for
good behaviour for a period of two
years with Spl. Executive
Magistrate, Khadki Divn., Pune
City.
3. It is stated that, the petitioner was directed to execute
bonds in both the chapter proceedings but, it did not curtail his
criminal activities. The Commissioner of Police, being a Detaining
Authority, has referred to recent offences committed by the petitioner
viz. C.R. No. 196/16 dt. 01.12.2016 and C.R. No. 3002/17 dt.
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10.01.2017 in her order dt. 08.02.2017. She has narrated in detail as
to how the petitioner and his accomplice were terrorizing the people
by firing rounds of pistol at public places and how the people were
scared of him. In the incident dt. 10.01.2017, the petitioner was
moving brandishing a knife in Kate Colony area and the people
fearing the petitioner, had closed their shops. The petitioner was
shouting that, if anyone had power, he should come forward, he
would kill them one by one. Then, in-camera statements were
recorded of two witnesses, which show that on 27.05.2016, the
petitioner created similar terror amongst the public at large and
accosted one person, abused him in the name of his mother and
demanded Hafta and robbed him of Rs. 620/- and also threatened
him that, he should pay more amount next time, lest he would be
killed and if he would try to lodge police complaint, he would barge
into his house and would kill him as well as his family members.
Similar incident dt. 25.08.2016 was deposed by witness B wherein he
was robbed of Rs. 1570/-. No person was to ready to help due to
fear of the petitioner. The Commissioner of Police recorded her
subjective satisfaction on the following grounds.
(i) That, the acts of the petitioner were within the four
corners of the acts of dangerous person as defined under
the MPDA Act and he was creating disturbance of public
order.
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(ii) The Assistant Commissioner of Police (in short "ACP")
had verified the in-camera statements and verified the
truthfulness & genuineness thereof.
4. On going through the statements, the Commissioner of
Police noted that she has seen the statements and report of ACP and
she was satisfied about the truth of the facts given in the statements
as well as the apprehension entertained by witnesses A & B. The
Commissioner of Police, Pune, has, in paras 10 to 13 of order
dt.08.02.2017, informed the petitioner about his right to make
representation to the State Government and the person to whom it
was to be addressed and his right to approach the Advisory Board in
case the State Government approves the decision.
5. The Detention Order was accompanied by several
documents consisting of total 304 pages relating to the various crimes
registered against the petitioner such as FIRs, arrest forms,
statements of witnesses recorded therein and the orders passed on
Bail Applications by the learned Judicial Magistrate First Class in
some matters.
6. The say of the Commissioner of Police at Exh. 31 shows
that, the detention order was forwarded to the Government of
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Maharashtra on 11.02.2017 and the Government accorded approval
to the same on 15.02.2017 and confirmed the same by detention
order dt. 22.03.2017. The petitioner made representation to
respondent No. 1-Additional Chief Secretary (Home), Government of
Maharashtra, Home Department (Special), Mumbai, on 03.04.2017
(not in time). The petition is silent on the action taken by the
Government and the Advisory Board and further progress in the
matter. The learned advocate for the petitioner and learned APP also
did not submit anything as to what happened to the detention order
and both the parties have not produced copies of approval or
detention order passed by the Government. It is axiomatic that the
order of detention passed by the Government is not challenged.
7. Shri. U. N. Tripathi, learned counsel for the petitioner
challenged the impugned order on following grounds and relied on
the rulings shown below each point.
(i) The detaining authority must ascertain and be
satisfied about the truthfulness of the statements
made in-camera and should record satisfaction to that
effect in the detention order and the same has not
been done.
(a) Smt. Vijay Raju Gupta Vs. R. H. Mendonca
& Ors. 2001 ALL M.R. (Cri) 48. In this case,
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there was defence that in-camera statements
were false and fabricated. Those were
recorded by inferior authority and also
verified by inferior authority.
(b) Shahjahan w/o. Kalimkhan Samshadkhan
Pathan Vs. State of Maharashtra & Anr.
2016 ALL MR (Cri) 4233.
(c) Gokul Sahabrao Sabale Vs. The
Commissioner of Police, Pune & Ors. 2017
ALL MR (Cri) 2051
(d) Sanjay s/o Ramlal Shahu Versus State of
Maharashtra & Anr. decided by the Division
Bench of this Court at Nagpur Bench, on
February 01, 2016.
(e) Santosh s/o. Bhimrao Mohokar Vs. The
State of Maharashtra & Ors. 2017 ALL MR
(Cri) 2007
(ii) There was non-application of mind.
(a) Mrs. Mrunalini Virendra Lonare Vs
Commissioner of Police and Ors decided by
Division Bench (A. S. Oka & A. A. Sayed, JJ.)
of this Court on 18th March, 2014. In this
case, the statements were vague and with
blank spaces.
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(b) Sau. Chandabai w/o. Dadarao Kale Vs.
State of Maharashtra & Ors. 2016 ALL MR
(Cri) 4797. (In this case, there were
discrepancies in age of petitioner and place of
raid).
(iii) 'Grounds' means basic material facts, which were not
communicated to the petitioner.
(a) Khudiram Das Vs. The State of West Bengal
and others reported in (1975) 2 SCC 81.
(b) Dattatraya Kakade Vs District Magistrate,
Solapur, decided on 28.04.2017.
(iv) There was no live link between the incident and the
date of detention.
(a) Mrs. Mrunalini Lonare's case (supra) (There
was gap of eight months between the order of
detention passed and the date of incident).
(v) Acquittal not considered. Acquittal in case was not
placed before the detaining authority.
(a) Deepak S/o Dattu Suryawanshi Vs. The
Commissioner of Police, Pune City & Ors.
2017 ALL MR (Cri) 416.
9 WP545.2017
8. After carefully going through the order of detention and the
say filed by respondent No. 2, we find that the Detaining Authority
has relied on two recent criminal cases dt. 01.12.2016 and
10.01.2017. Besides, in-camera statements of the witnesses disclose
the incidents dt. 27.05.2016 and 25.08.2016. Rest of the cases of
2012, 2013 & 2014 only show the trend of the petitioner as habitual
offender. Neither the order of detention nor the affidavit of
respondent No. 2 shows that she wanted to rely on the facts of those
cases except to show nature of habits of the detenue, still as a matter
of caution, she provided copies of FIR, arrest forms and other
statements and documents from all these cases. We find no substance
in the contention that basic facts and material was not supplied.
There are 76 documents running into 304 pages, which were
supplied to the detenue. Besides, the Detaining Authority has
described in detail the statements of two witnesses recorded in-
camera as well as two recent incidents. We find no reason to raise
any doubt about the subjective satisfaction of respondent No. 2 that
from the record referred by her in the order that the petitioner was a
dangerous person, he was disturbing the public order, he was
indulging in terrorizing the public, he had taken crime as his
profession, he was using weapons and giving threats, he was moving
along with several accomplice and robbing people and intimidating
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with threats of killing. People from the vicinity were scared. On his
arrival, they were running helter and skelter and were closing
shops. Nobody was ready to protest him or to help the victim. If this
does not amount to disturbance of public order, nothing else can
amount to disturbance of public order. In Hasan Khan Vs R. H.
Mendonca 2002(3) SCC 511, similar activities of the detenue from
the said case disclosed were quite mild still it was held that those
activities amounted to breach of public order and not breach of law &
order. In Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of
Maharashtra and another AIR 1992 SC 979, use of arms to create
fear psychosis is held to be prejudicial to Public Order.
9. A lot of stress was given on the fact that, in-camera
statements were not personally verified by the Detaining Authority
and her subjective satisfaction has not been recorded. In this regard,
we find that in para 9 of the impugned order, the Detaining Authority
has recorded her subjective satisfaction in following words.
"The Assistant Commissioner of Police, Khadki Division,
Pune has verified the truthfulness and genuineness of the
incidents narrated in the 'in-camera' statements of the
Witnesses 'A' and 'B' and submitted report to me. In the
said report, the Assistant Commissioner of Police, Khadki
Division, Pune has mentioned that the facts given in the
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written statements and apprehension entertained by the
Witnesses 'A' and 'B' therein 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' and 'B' are true and reasonable."
10. We have seen the original record. The statements recorded
in-camera disclose the endorsement "Seen" and the signature of the
Detaining Authority as on 30.01.2017. Most of the rulings relied on
by learned advocate for the petitioner disclose that the Detaining
Authority should see the in-camera statements for subjective
satisfaction about genuineness of the statements as well as
unwillingness of the witnesses to make open statement. The ACP has
personally verified the truth by visiting the spots and made inquiry
with the neighbouring persons and they have also admitted the
incidents on the assurance of anonymity. The witnesses have
categorically stated that, they were scared of the petitioner and their
names should not be disclosed and they should not be called to give
evidence. They have even not filed complaints inspite of getting
robbed from the petitioner. We, therefore, find that there is no
substance in the contention that in-camera statements were not
personally seen by the Detaining Authority. These facts are not
assailed by the petitioner as untrue. Therefore, the finding of
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Detaining Authority that detenu was dangerous person is not vitiated.
(reliance on Smt. Phulwari Jagdambaprasad Pathak Vs. Shri. R. H.
Mendonca & Ors. AIR 2000 SC 2527).
11. So far as the issue of live link is concerned, the incident of
27.05.2016 is quite old. There were three other incidents of August
2016, Dec-16 and Jan-17 which were recent one. There are various
crimes registered against the petitioner and the incidents disclose the
continuous and consistent link of criminal activities of the petitioner.
Three out of four incidents referred by the Detaining Authority are
recent one. In Bhupendra Vs. State of Maharashtra and another
2008 (17) SCC 165, it is held as under:
"10. 'Public Order' 'law and order'and the 'security of the
State' fictionally draw three concentric circles, the
largest representing law and order, the next representing
public order and the smallest representing security of the
State. Every infraction of law must necessarily affect
order, but an act affecting law and order may not
necessarily also affect the public order. Likewise, an act
may affect public order, but not necessarily the security
of the State. The true test is not the kind, but the
potentiality of the act in question. One act may affect
only individuals while the other, though of a similar
kind, may have such an impact that it would disturb the
even tempo of the life of the community. This does not
mean that there can be no overlapping, in the sense that
an act cannot fall under two concepts at the same time.
An act, for instance, affecting public order may have an
impact that it would affect both public order and the
security of the State. "
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12. It is necessary here to quote Section 5A of MPDA Act,
which reads as under:
5A : GROUNDS OF DETENTION SEVERABLE:
Where a person has been detained in pursuance of an order of
detention under section 3 which has been made on two or more
grounds, such order of detention shall be deemed to have been made
separately on each of such grounds and accordingly--
(a) such order shall not be deemed to be invalid or
inoperative merely because one or some of the grounds is
or are
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with
such person, or
(v) invalid for any other reason whatsoever, and it is
not, therefore, possible to hold that the State
Government or an officer mentioned in sub-section
(2) of section 3 making such order would have been
satisfied as provided in section 3 with reference to
the remaining ground or grounds and made the
order of detention;
(b) the State Government or such officer making the order of
detention shall be deemed to have made the order of
detention under the said section 3 after being satisfied as
provided in that section with reference to the remaining
ground or grounds.
13. In the light of this section, even if it is assumed that the
incident dt. 27.05.2016 or the crimes registered against the petitioner
in the year 2012, 13 or 14 referred in the detention order though not
proximate were considered, still the detaining authority herself has
stated and her order discloses that she was not relying on the
incidents of 2012, 2013 and 2014 and even if the incident dt.
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27.05.2016 is held to be not proximate, still the order of detention is
substantiated by other incidents which were sufficient to uphold the
findings recorded by the Detaining Authority. We rely on Priyanka
Fulore v. State of Maharashtra (2002) 9 SCC 214, wherein in para
nos. 5 & 7 it is held as under:
"5. ..... The counsel submitted that the materials
against the detenu were collected in the month of
July 2000 whereas the proposal for detention was
initiated in August 2000 an the order of detention
was passed in October 2000. .....
7. On consideration of the facts of the case as
appearing from the records and the nature of
activities alleged against the detenu, in our view,
the findings recorded by the High Court that the
detention order in the case was neither vitiated due
to the delay nor on the ground of illegality in
accepting the in-camera statements as materials for
subjective satisfaction of the authority is
unexceptionable. The High Court has given cogent
reasons in support of its findings. Therefore, the
order of detention passed against the detenu does
not call for any interference."
14. We find that the Detaining Authority has not disclosed the
period of detention in her order. As per Section 3(3) of the MPDA
Act, her order has a life of only 12 days. The order will continue only
subject to approval by the State Government. The period of
calculation starts from the date of detention. The petitioner has not
disclosed the date of detention. Both the parties have not produced
the order of approval of the State Government or the separate order
of detention passed by the State Government. [Reliance on State of
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Maharashtra v. Santosh Shankar Acharya AIR 2000 SC 2504].
There is no statement that the State Government placed the
detention order before the Advisory Committee within three weeks
from the date of detention as required u/s 10 of the MPDA Act. The
petitioner has not raised this ground nor has the Government
produced any record to that effect. It seems that, the petitioner is in
Jail from 08.02.2017 till today.
15. In Mrs. T. Devaki v. Government of Tamil Nadu and
others AIR 1990 SC 1086, three Judges Bench of Apex Court held
that order of detention not specifying the period of detention does
not make the order invalid.
16. Before parting with the final order, we wish to express that
when the names of the witnesses are withheld u/s 8(2) of the MPD
Act, the Detaining Authority or the person recording the statement of
such persons should take utmost care to see that the statements do
not give any clue about the identity of witnesses to the detenu,
otherwise mere withholding names of witnesses will serve no
purpose.
ORDER
(i) The Criminal Writ Petition is dismissed.
[ A. M. DHAVALE ] [ S. S. SHINDE ]
JUDGE JUDGE
sgp
