Bombay High Court
Manoj Bhausaheb Padale vs The Commissioner Of Police Pune ... on 26 September, 2017
Bench: V.A. Naik
1 WP158.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 158/2017
Majoj Bhausaheb Padale
Aged 27 years, Residing at
Vikash Nagar, Near Ganpati Temple,
Pune ..... Petitioner
Versus
1. The Commissioner of Police,
Pune City
2. The State of Maharashtra
(Through Addl. Chief Secretary)
to Government of Maharashtra
Mantralaya, Home Department
Mantralaya, Mumbai)
3. The Superintendent,
Amravati Central Prison,
Amravati ..... Respondents
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Shri R.Vyas, Adv. for the Petitioner
Shri S.S. Doifode, A.P.P for the Respondents
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CORAM : Smt. Vasanti A. Naik &
M.G. Giratkar, JJ.
DATE : 26/09/201
Oral Judgment (PER:- Smt. Vasanti A. Naik, J.)
RULE. Rule made returnable forthwith. The writ petition is heard
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finally at the stage of admission with the consent of the learned counsel for
the parties.
By this criminal petition, the petitioner challenges the order of
the detaining authority, detaining the petitioner under section 3 (2) of the
Maharashtra Prevention of Dangerous Activities Act, 1981. The order of the
State Government confirming the order of the detaining authority is also
challenged.
Shri Vyas, the learned counsel for the petitioner submitted that
the impugned order is liable to be set aside as though the detaining
authority has relied on the offences registered against the petitioner at Serial
Nos. 5, 6, 7, 8 and 9 in the chart incorporated in Para 3 of the order of
detaining authority in the grounds of detention, it has not given the
particulars or details of the crime that was allegedly committed by the
petitioner in respect of the offences mentioned at Serial Nos. 5, 6 and 7 of
the chart. It is submitted that the details and particulars have been furnished
in the grounds of the order of the detaining authority only in respect of
three crimes that are mentioned at Serial Nos. 8, 9 and 10 in the chart. It is
submitted that it is no more res-integra that when the detaining authority
refers to the offences mentioned in the chart of crimes incorporated in the
order for recording the subjective satisfaction that the detenue is a
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dangerous person, it would be necessary for the detaining authority to
specify the details and the particulars of the crime that are mentioned in the
chart. It is submitted that if the details are not supplied in the grounds in the
order of detention and if the said offences are relied on by the detaining
authority for detaining a person, the impugned order is liable to be set aside,
as it affects the right of the detenue to make an effective representation
against the grounds in the detention order under Article 22 (5) of the
Constitution of India. It is submitted that by relying on the judgment of the
Hon'ble Supreme Court in the case of Khudiramdas Vs. State of West Bengal
reported in (1975) 2 SCC 81, this Court has allowed Criminal Writ Petition
No. 55/2017 and Criminal Writ Petition No. 1294/2013 by the judgments
dated 28/04/2017 and 26/06/2017 respectively. It is submitted that since
the right of the petitioner to make an effective representation is affected in
the absence of furnishing the details in respect of the crimes that are
considered by the detaining authority while reaching the subjective
satisfaction, the impugned order of detention is liable to be set aside.
Shri Doifode, the learned Additional Public Prosecutor appearing
for the respondents has supported the impugned order. It is submitted that it
is apparent from Paras 6 and 8 of the order of the detaining authority that
only the offences at Serial Nos. 8, 9 and 10 and the in-camera statements of
two witnesses were considered by the detaining authority for holding that
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the petitioner is a dangerous person and his detention was necessary. It is
submitted that it is apparent from a reading of Para 6 of the impugned order
of detention that the petitioner had breached the condition of the bond in
respect of the offences which are mentioned at Serial No. 5 in the chart. It is
submitted that in Para 5 of the impugned order of detention, the detaining
authority has clearly mentioned that three crimes/offences at Serial Nos. 8
to 10, as mentioned in the chart and the in-camera statements of witnesses
would show that the petitioner is a dangerous person. It is submitted that
the petitioner cannot effectively raise a ground that the detaining authority
had relied on the offences mentioned at Serial Nos. 5, 6 and 7 while passing
the order of detention. It is submitted by placing reliance on the judgment
in the case of Bhushan S/o Vijay Rane Vs. State of Maharashtra reported in
(2017) 4 Mh.L.J (Criminal) 75 that the court had while dismissing the
petition, filed by the detenue, held that the detaining authority was satisfied
that after the detenue had entered into the bond, the detenue again
indulged in the activities that are prejudicial to the maintenance of public
order. In the circumstances of the case, the learned Additional Public
Prosecutor sought for the dismissal of the Writ Petition.
We have minutely perused the order of detention dated
08/11/2016. Para 1 of the detention order clearly states that the detaining
authority was thereby communicating the grounds on which the detention
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order was passed, to the petitioner. In Para 2, the detaining authority has
mentioned how the activities of the petitioner have become a perpetual
danger to the lives and properties of the people residing in the area. Para 3
of the detention order mentions the chart which gives the list of offences
and preventive action i.e taken against the petitioner. In para 4 of the
detention order, the details of only three offences that are mentioned at
Serial Nos. 8, 9 and 10 of the chart are supplied. In para 5 of the detention
order, the detaining authority refers to the in-camera statements of the two
witnesses that are not known to the petitioner. Para 6 would be relevant for
considering the correctness or otherwise of the submission made on behalf
of the petitioner. Para 6 of the order clearly mentions that the petitioner
had breached the bond in respect of crime at Serial No. 5 in the list of
offences in Para 3 and after breaching the said bond, the petitioner
continued to commit serious offences such as riot, illegal possession of
firearm as well as other arms, robbery, hurt, etc, in the jurisdiction of
Sinhagad Road Police Station, Pune. The detaining authority observes in
Para 6 of the order that the said offences are mentioned at Serial Nos. 6, 7,
8, 9 and 10 of the chart of the offences. The detaining authority did not
stop at mentioning the offences that the petitioner had allegedly indulged
into after the bond period was over, but had further added that it was
evident from the commission of the offences at Serial Nos. 6, 7, 8, 9 and 10
of the chart of offences, that the normal laws of the land were insufficient to
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curtail the dangerous criminal activities of the petitioner. It is apparent from
a reading of Para 6 that the detaining authority had based the order of
detention on the offences mentioned at Serial Nos. 5, 6 and 7 of the chart to
hold that the petitioner was involved in the commission of serious offences
and the normal laws of the land were insufficient to curtail the dangerous
criminal activities of the petitioner. It is necessary to note that though in
Para 4 of the order of the detaining authority, the detaining authority has
provided the details in regard to the offences at Serial Nos. 8, 9 and 10 in
the chart in Para 3, the detaining authority, did not give any particulars in
respect of the offences at Serial Nos.5, 6 and 7 in the chart. The offences
registered against the petitioner at Serial Nos. 6 and 7 of the chart also
appear to be serious and they are indeed held so, by the detaining authority
in Para 6 of the order. It is apparent from a reading of the order of
detention, that though in the grounds of detention, the offences at Serial
Nos. 6 and 7 of the chart are considered by the detaining authority for
passing the order of detention, the details and particulars of the said
offences are not to be found in the grounds in the order of detention. It is
held by the Hon'ble Supreme Court in the judgment in the case of
Khudiramdas (supra), that it would be necessary for the detaining authority
to communicate to the detenue the basic facts and materials which have
been taken into account by the detaining authority while making the order
of detention and on which, therefore the order of detention is based. By
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following the law laid down by the Hon'ble Supreme Court in the case of
Khudiram (supra), this Court has, in the unreported judgment dated
26/06/2013 in Writ Petition No. 1294/2013 held that since the basic facts
and materials in relation to the offences that were mentioned in the chart
and that had influenced the subjective satisfaction of the detaining
authority, had not been incorporated in the grounds served upon the
petitioner, the right of the petitioner to make an effective representation
against the order of detention had been violated. In the said judgment also,
though the detaining authority had relied on certain offences that were
mentioned in the chart, the details and particulars of those offences were
not provided in the grounds of detention. A similar view was expressed in
the recent unreported judgment dated 28/04/2017 in Criminal Writ Petition
No. 55/2017. It is held that the communication of the grounds of detention
would mean the communication of all the basic facts and materials which
have been taken into account by the detaining authority while making the
order of detention. In the said case, also, like the one in hand, the detaining
authority had relied on the first information reports at Serial Nos. 2 to 7 in
the chart but the details of the said offences were not incorporated in the
grounds of detention. In the instant case, the order of the detaining
authority clearly reveals that the detaining authority has considered the
offences mentioned at Serial Nos. 5, 6 and 7 of the chart in Para 3 of the
order of detention, but no details or particulars, whatsoever, in respect
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thereof are provided in the grounds of detention. In the absence of
particulars, the right of the petitioner to make an effective representation
was surely affected. While parting, we hold that the judgment reported in
(2017) 4 Mh.L.J (Criminal) 75 and relied on by the learned Additional
Public Prosecutor would not help the respondents in defending the
impugned order of detention. The question, as to what would be the effect
of non-furnishing of the particulars or details of the crimes/offences that are
considered by the detaining authority for recording the subjective
satisfaction, did not fall for consideration in the said case.
In the result, the Writ Petition is allowed. The impugned orders
are quashed and set aside. Rule is made absolute in the aforesaid terms with
no order as to costs.
JUDGE JUDGE
Ansari
