Nazeem Ahmed Abdulrahim Salar vs The Commissioner Of Police And Ors
2017 Latest Caselaw 7706 Bom

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Sharayu

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                         WRIT PETITION NO. 3168 OF 2017



     Nazeem Ahmed Abdulrahim Salar                            ...Petitioner

             Versus

     1. The Commissioner of Police Solapur

     2. The State of Maharashtra
        (Through Addl. Chief Secretary
        to Government of Maharashtra 
        Home Department, Mantralaya, 
        Mumbai)

     3. The Superintendent
        Yerwada Central Prison
        Pune.                                                 ...Respondents

                                          ----------

     Mr. Udaynath Tripathi, for the Petitioner.

     Ms. V.S. Mhaispurkar, APP, for the Respondent-State.


                                          ----------


                                          CORAM : ABHAY S. OKA & AND
                                                  RIYAZ  I. CHAGLA, JJ.

                                          DATE     : 29 September 2017









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 ORAL JUDGMENT : [Per Riyaz I. Chagla  J.]

1. The Petitioner by the present Petition challenged an

order of preventive detention dated 2 May 2017 passed against

him under the Maharashtra Prevention of Dangerous Activities

of Slumlords, Bootleggers, Drug Offenders, Dangerous Person

Video Pirates, Sand Smugglers and persons engaged in Black-

marketing of Essential Commodities Act, 1981 (for short "the

said Act").

2. The learned Counsel appearing for the Petitioner has

drawn our attention to the ground (c) of the Petition, which

reads thus:-

"The Petitioner says and submits that the detaining

authority has referred to and relied on two in-camera

statements of Witnesses 'A' and 'B' recorded on

18.04.2017 and 19.04.2017 respectively, it is

important to note that both the statements are

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recorded by Sr.Inspector of Police, Sadar Bazar Police

Station, Solapure and shown to have been verified by

Assistant Commissioner of Police, Division-1, Solapur

whereas no dates ought to have verification are

disclosed on the said statements below the signature of

Verifying Officer. The so-called verification is not

proper and authentic and which also amounts to non-

verification of statements. The verifications are vague

and invalid for non-mentioning the dates of

verification. Such statements cannot be considered for

detention of the detenu. This shows total non-

application of mind of the Verifying Officer as well as

the detaining authority. The order of detention is

illegal and bad in law, liable to be quashed and set

aside."

3. He has submitted that the Detaining Authority had

relied on two in-camera statements of witnesses 'A' and 'B'

recorded on 18 April 2017 and 19 April 2017. Both the

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statements are recorded by the Senior Inspector of Police, Sadar

Bazar Police Station, Solapur verified by the Assistant

Commissioner of Police, Division-1, Solapur. However, no dates

have been mentioned as to when the verification disclosed in

the statements below the signature of the Verifying Authority

took place. He has therefore submitted that the verification is

not proper and/or authentic and amounts to non verification of

the statements. He has also contended that the incidents

mentioned in the in-camera statements of the two witnesses are

of March 2017 and April 2017. He has submitted that thereafter,

on 2 May 2017, the Hon'ble J.M.F.C. Court No. 9 at Solapur

handed over the Detenu to custody of the M.I.D.C. Police

Station. He has submitted that the Detenu was in judicial

custody on the date of his detention on 2 May 2017. The

Detaining Authority has not recorded his satisfaction viz. that

there is a "real and eminent" possibility of the release of the

Detenu on bail shortly supported by any cogent material, which

is one of the essential guidelines laid down in the judgment in

the case of Kamarunissa Vs. Union of India & Anr.1. He has 1 (1991)1 SCC 128

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therefore, submitted that on these two main grounds, the order

of detention be quashed and set aside.

4. The learned AGP has supported the order of

detention which according to her is well supported by the

grounds of detention. The learned AGP has invited our attention

to paragraph 7 of the grounds of detention, wherein after

recording the subjective satisfaction, the Detaining Authority has

considered the fact that the associates of the Detenu has already

been released on bail and after taking this into consideration

stated that there is possibility of the Detenu be granted bail.

5. We have carefully considered the submissions. We

have perused the in-camera statements, copies of which have

been supplied to the Petitioner. The two in-camera statements

relating to the incidents in March and April 2017 have been

recorded on 18 and 19 April 2017 respectively. The order of

detention has been passed on 2 May 2017. In the copies of the

in-camera statements supplied to the Petitioner, the verification

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recorded below the in-camera statements are not bearing the

date of verification and have been kept blank. Even in the

grounds of detention, the dates on when the verification was

effected have not been mentioned. We have noticed that insofar

as one of the incidents of which the witness statements pertain

the gap is nearly two months from the date of passing the order

of detention. We are of the view that the dates on which the in-

camera statements were verified are very material and relevant

in the facts of the case. The omission to mention the dates

infringe the constitutional right available to the Petitioner for

making an effective representation against the order of

detention. The failure to mention the dates in the grounds of

detention infringes the rights of the Petitioner of making an

effective representation against the order of detention.

6. We have noticed that in the grounds of detention at

paragraph 7, the Detaining Authority has recorded subjective

satisfaction after going through, inter alia, the witness

statements and has stated that the Detenu was acting in a

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manner prejudicial to the public order. In the said paragraph, it

is mentioned that the Detenue is still under Magisterial custody

in connection with the C.R.No. 543/2016, the said paragraph

reads thus:-

"All of your associates in Crs., as mentioned in

above Para No. 5-1 and 5-2 were already released on

bail.

Like this taking into consideration the provision

mentioned under Section 439 of Cr.P.C., in future

there is possibility of your bail, in future if you gets

bail, you will become a free person and taking into

consideration your propensity towards criminality as

shown in above, there is a possibility that you will

likely to revert to the similar activities prejudicial to

the maintenance of public order in future."

7. Having considered these statements of the Detaining

Authority in the said paragraph, we are of the view that

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although the Detaining Authority has only mentioned that in the

future there is possibility of the Detenu gets bail and not having

mentioned the eminent and real possibility of his release on bail

in line with the judgment of the Apex Court in Kamarunissa

(supra), the Detaining Authority has mentioned this only after

considering that all the associates of the Detenu had already

been released on bail. The Detaining Authority has therefore,

considered this relevant fact and having so considered

mentioned that there was a possibility of the Detenu being

released on bail. We do not consider the said statement of the

Detaining Authority being fatal to the order of Detenu.

8. However, we are of the view that the omission to

mention the date of verification of in-camera statements

furnished to the Petitioner and in the grounds of detention, the

order of detention stands vitiated. We have also noticed that in

the Affidavit of the Detaining Authority dated 22 September

2017, the Detaining Authority at paragraph 12 has admitted

that the statements which are verified by Shri. H.V. Parande, the

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Assistant Commissioner of Police, Division 1, Solapur on 20

April 2017 had not mentioned the date below his signature. The

Detaining Authority has stated that after perusing the

verifications at bottom of in-camera statements and satisfying

himself about the truthfulness of the incident and apprehension

expressed by the witness and that the statements were true and

genuine had been subjectively satisfied that the Detenu was

disturbing the maintenance of public order and issued a

detention order. We are of the view that the omission to

mention the dates of verification on the copies of the witness

statements furnished to the Petitioner has resulted in an

infringement of the right of the Petitioner in making an effective

representation against the order of detention. Hence, the Writ

Petition must succeed on this ground alone and we pass the

following order.

(i) Rule is made absolute, in terms of prayer clause

(b), which reads thus:-

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"That the order of detention bearing No.

07/CBBL-DP/17 dated 02.05.2017 under Section

against the detenu, be quashed and set aside and

on quashing the said order of detention, the

detenu be released forthwith."

(ii) All concerned to act upon an authenticated copy

of the operative part of the Judgment and

Order.

(iii) There shall be no order as to costs.

 [RIYAZ I. CHAGLA  J.]                               [ABHAY S. OKA, J.]