Vishnu @ Bablu Vasant Gawali vs The Commissioner Of Police And Ors
2018 Latest Caselaw 580 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION  NO.  4943 OF   2017


         Vishnu @ Bablu Vasant Gawali                             ... Petitioner.
         Age 43 years, r/at 744, Bhavani Peth,                      (Detenu)
         Fakir Mohammed Chawl, Pune.

                                       V/s.

         1. The Commissioner of Police, Pune                      ... Respondents.
         2. The State of Maharashtra (through Addl.
            Chief Secretary, Home Dept.,Mantralaya,
            Mumbai.
         3. The Superintendent, Nashik Rd.,Central
            Prison, Nashik.
         4. The Secretary, Hon'ble Advisory Board,
            Constituted u/s.9 of MPDA Act, 1981,
            Mantralaya, Mumbai-400 032.
                                       ---
         Mr. Udaynath N. Tripathi, Advocate for the Petitioner.
         Mr.  J. P. Yagnik,  APP for the State.
                                             ---

                                       CORAM :  S. C. DHARMADHIKARI   AND
                                                       SMT.BHARATI H. DANGRE, JJ.

                                         DATE  :    18th  JANUARY,  2018

                                         [Order Reserved on       : 12.01.2018]
                                         [Order Pronounced on  : 18.01.2018]

         JUDGMENT  :     (Per Smt.Bharati H. Dangre, J.) 

         1                 The present Petition is filed by the Petitioner, who 

is a detenu, detained at Nashik Road Central Prison, Nashik

and he is aggrieved by the impugned order of his detention

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passed by the Commissioner of Police, Pune City, Pune on

31.12.2016, thereby directing the petitioner to be detained

from the date of service of the said order under the provisions

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, for

short, referred to as the MPDA Act, 1981), with a view to

prevent him from acting in any manner prejudicial to the

maintenance of the public order.

Pursuant to the said impugned order of detention,

the petitioner is detained and presently, he is undergoing

detention and he prays that the order of detention is liable to

be quashed and set aside on several grounds which he has

raised in the writ petition.

2 Respondent No.1, the Detaining Authority i.e. the

Commissioner of Police, Pune City, Pune has passed the order

dated 31.12.2016 in exercise of powers conferred under sub-

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section 2 of Section 3 of the MPDA Act, 1981, thereby directing

the detention of the petitioner under the provisions of the said

Act. The main ground on which the petitioner has assailed

the impugned order of detention, is narrated in the petition

in paragraph - 'c' of the grounds of detention, which is

reproduced below :

"c. The Petitioner says and submits that even though the order of detention is passed on 31.12.2016, the said order of detention alongwith grounds of detention is executed and served upon the detenu on 19.01.2017 while he was in custody i.e. beyond five days. The requirement of law is that the grounds should be served upon the detenu within 5 days from the date of detention. In this case, the detenu was already in custody on the day of detention. The executing authority is called upon to explain the delay in execution of the order of detention to the satisfaction of this Hon'ble Court by producing relevant record, failing which the order of detention will be held illegal and bad in law. The order of detention is illegal for delay in execution of the order of detention. The order of detention is illegal and bad in law, liable to be quashed and set aside."

The petitioner has raised further a ground in the

petition that the detaining authority has failed to record his

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subjective satisfaction since it did not take note of the fact

that the order of detention was passed on 31.12.2016 while

the detenu was already in judicial custody at Yerwada Central

Prison, Pune after been arrested in CR No. 158 of 2016 on

29.09.2016. The petitioner has also stated in the petition that

the detaining authority has passed the order of detention in a

very casual and cavalier manner without applying its judicious

mind and there is complete non-application of mind on the

part of the detaining authority.

On the aforesaid grounds, the petitioner prays

that the impugned order of detention is illegal, bad in law and

is liable to be quashed and set aside.

3. Another ground on which the petitioner assails his

detention is raised in paragraph -'b' of the petition, which

reads as follows :

"b. The Petitioner says and submits that neither the detaining authority in the grounds of detention nor the Secretary, Advisory Board in its intimation letter has apprised/ informed to the detenu one of the valuable rights i.e. to lead oral evidence in rebuttal against the allegations made against him

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by producing and examining witnesses before the Hon'ble Advisory Board and to keep witnesses ready on the day of interview. The Petitioner says and submits that the above-said right of the detenu to produce and examine witnesses before the Hon'ble Advisory Board, is a constitutional safeguard and recognized by Hon'ble Supreme Court. The Petitioner says and submits that as a result of non-appraisal of his one of the valuable rights, the detenu could not make any arrangement to produce and examine witnesses before the Hon'ble Advisory Board, as such his right to defend his case effectively before the Hon'ble Advisory Board, is violated. The Petitioner says and submits that what is informed to the detenu in paragraph 14 of the grounds of detention is that 'as well as other rights prescribed in the Act', which is absolutely vague and how a detenu is expected to know what are the other rights under which Acts of preventive detention unless specified by the authority. It is therefore, clear that since the detenu's right to lead oral evidence in rebuttal by producing and examining witnesses before the Hon'ble Advisory Board is not apprised, he is deprived of exercising before the Hon'ble Advisory Board. The procedure adopted by Hon'ble Advisory Board is not just, fair and reasonable. The whole Board proceeding vitiates. The report submitted to State Government is erroneous and illegal. Further the confirmation order issued on the basis of Advisory Board's report is also illegal and bas in law. The order of detention is illegal and bad in law, liable to be quashed and set aside."

4. The detaining authority in response to the grounds

of detention raised in the petition, has filed an affidavit

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through the Commissioner of Police Pune City, Pune. In the

affidavit the detaining authority has referred to the material

on the basis of which the subjective satisfaction was reached.

According to the said affidavit, the proposal for detention of

the petitioner was forwarded to the authority, which was

based on four offences. One of the offences was within the

period of six months and reliance was also placed on two in-

camera statements, which were duly verified by the Assistant

Commissioner of Police, Lashkar Division, Pune City. The

affidavit states that the detenu was found to be engaging in

prejudicial activities, which were affecting maintenance of

public order and on perusal of the material, the detaining

authority was satisfied that the activities of the detenu were

prejudicial to the maintenance of public order in the area of

Lashkar of Pune City and the detenu was a dangerous

desperado of violent character, indulging in terrorizing

activities and had created a reign of terror in the society. It

is further stated in the affidavit that the detenu had

become perpetual danger to the lives and properties of the

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people residing and carrying out their daily activities and

vocation in the jurisdiction of Lashkar Police Station of Pune

city and the detenu and his accomplices, armed with deadly

weapons such as pistol, koyata, axe and wooden shaft had

committed various offences including the offence of attempts

to commit murder, grievous hurt and robbery. It is also stated

that the detenu has habitually been committing offences

under Chapter XVI and XVII of the Indian Penal Code as well

as under Chapter V of the Arms Act and he was thus a

dangerous person, as defined in section 2(b-1) of the MPDA

Act.

In regard to ground number 'c', the detaining

authority stated as follows in para 10 :

"10. With reference to para 5(c) of the petition, it is kindly submitted that the former portion of the said para that the detention order was passed on 31.12.2016 and the same has been served upon Detenu on 19.01.2017 is true and correct but the rest of the contents are not true and correct hence, denied by me.

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                           It   is   kindly     submitted   that   the   Detenu     was   in 

Yerawada Jail on the offence registered with Lashkar Police Station Vide C.R. No.158/2016 u/s. 307, 143, 147, 148, 149 of IPC u/s. 3/25 of the Arms Act, r/w. Section 37 (1) 135 of the Maharashtra Police Act, 1951. As such the said order of detention was served upon the detenu on 19.01.2017. Further the detention order came into force only after the service of the detention order to the Detenu. As such there is no such delay as alleged by the Detenu and in -between period between 01.01.2017 to 19.01.2017 is explained by Police Inspector, P.C.B. by in their separate affidavit."

On record, we also find the Affidavit sworn by

Satish Dattatray Mane, Police Inspector, Preventive Crime

Branch, Pune city, Pune, who has attempted to explain the

period consumed for serving the order of detention on the

detenu in para 2 of the affidavit which reads as under :

"2. I state that, the Senior Police Inspector of Lashkar Police Station received Detention Order vide no. 4277/ 2016 dtd. 31.12.2016 issued by detaining authority on the same day. There was holiday (Sunday) on 01.01.2017 so he visited Yerwada

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Central Jail to serve the said order on detenu on 02.01.2017 as Detenu was already in Yerwada Jail, Pune in magisterial custody in Lashkar Police Station, Pune, C.R.No.158/2016 u/s. 307, 143, 147, 148, 149 of the IPC r/w. Sec. 3/25 of the Arms Act r/w. Sec. 37(1)/135 of the Maharashtra Police Act. As the said detenu was already in magisterial custody, the Jail Officer of the Yerwada Central Prision, Pune asked for N.O.C. of concerned Court for executing the said detention order. Thereafter, the report was submitted to the Hon'ble Sessions Court, Shivajinagar, Pune for obtaining permission to serve the detention order to the Detenu and lodging him at Nashik Central Prison, Nashik on 02.01.2017. The copy of the said report attached herewith at Annexure 'A'. But concerned Hon'ble Court, Pune did not give permission still 19.01.2017. So concerned police office met Hon'ble Court, Pune and requested for obtaining sanction order to concerned Hon'be Court, Pune.

The said court gave oral instructions to serve the detention order on detenue on 19.01.2017. So on 19.01.2017 Police Inspector, Crime of Lashkar Police Station, Pune has served detention order and all relevant documents to the Detenu. Thereafter, permission was granted by the concerned Hon'ble

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Court to transferred the Detenu on 21.01.2017 and on 23.01.2017 Detenu was transferred to Nashik Central Prison. Copy of the above said order dated 21.01.2017 is annexed herewith for kind reference as Annexure 'B'."

5 As regards the ground raised in the petition about

the detention of the detenu, as raised in paragraph number -

'b' of the petition, the affidavit filed by the Secretary of

Advisory Board, MPDA & VP Act, 1981, Home Department

(Special), State of Maharashtra, filed on 6th January, 2018

deals with the said ground. In response to the said ground,

the affidavit states that the order of detention which was

passed on 31.12.2016 and the case report about the detention

was sent by the Commissioner of Police, Pune to the Home

Department on 07.01.2017 and it was received by the

Advisory Board on 11.01.2017. It is further stated that the

intimation letter dated 03.02.2017 was issued to the detenu

through the Superintendent, Nasik Road Central Prison, Nasik

by the Secretary, Advisory Board on 03.02.2017 and the

detenu was informed that the hearing before the Advisory

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Board is fixed on 10.02.2017 at 3.00 pm in the High Court

Mumbai and if he wishes to make a representation against his

detention, he may do so and address the same to the

Chairman, Advisory Board immediately. It was also intimated

to the detenu that he can take assistance of his friend and

examine witnesses, if any, and keep him/them present at the

time of interview before the Advisory Board. Alongwith the

affidavit, the copies of the said communications are also

placed on record. The communication addressed to the detenu

bears the date of 03rd February, 2017. The affidavit also

further states that the detenu was given sufficient

opportunity to make representation to the Advisory Board

and on the date of the hearing before the Advisory Board on

10.02.2017, the detenu was present and he was heard

alongwith his Advocate Mrs. Ansari.

After hearing the detenu-in-person as well as his

Advocate, the Advisory Board forwarded its opinion to the

State Government on 14.02.2017.

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         6                 We have heard  the learned counsel Shri Udaynath 

Tripathi, appearing for the petitioner and Mr. J. P. Yagnik,

APP for the State at length. With the assistance of the learned

counsels, we have perused the entire record including the writ

petition and its annexures and the affidavit filed on record in

support of the order of detention of the detenu.

The learned counsel for the petitioner was sternly

critical about the manner in which the order of detention was

executed on the detenu and the learned counsel for the

petitioner would argue that though the detention order was

passed on 31.12.2016, the order of detention alongwith the

grounds of detention, was executed on 19.01.2017 while the

detenu was in custody. He would argue that the detaining

authority should have amply justified the delay in executing

the order of detention by producing relevant record, failing

which the order of detention is liable to be quash and set aside.

We have considered the submissions advanced on

the said aspect. The detaining authority has admitted that

the detention order was issued on 31.12.2016 and it is

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submitted that the detenu was in Yerwada Central Prison in

an offence registered with the Lashkar Police Station and he

was served with the detention order on 19.01.2017.

6 The learned APP appearing on behalf of the

detaining authority would argue that the detention order

came into force only after its service and as such there is no

prejudice since the order is valid for one year from the date of

its' service and as such there is no delay and even if it is so, it

does not prejudicially affect the detenu.

We have also perused the affidavit filed by Satish

Dattatray Mane, Police Inspector, Preventive Crime Branch,

Pune, who has executed the order of detention and the

detaining authority in its affidavit has stated that the period

after passing of the detention order till its service on the

detenu is explained by the Police Inspector in a separate

affidavit. The Police Inspector, Preventive Crime Branch, Pune

City, has justified the said time lapse, by stating that the

Senior Police Inspector of Lashkar Police Station, received the

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detention order dated 31.12.2016 on the same day from the

detaining authority. However, on the next date i.e.

01.01.2017, it was holiday, being Sunday, and therefore, he

proceeded to Yerwada Central Jail to serve the order of

detention on the detenu on 02.01.2017 as the detenu was

already housed in a Yerwada Jail, being in Magisterial custody

in Lashkar Police Station, Pune in relation to the CR No.158 of

2016. It is stated by him that since the detenu was in

Magisterial custody, the Jail Officer of the Yerwada Central

Prison, asked for the NOC of the concerned court for executing

the detention order and thereupon an application was

submitted to the Hon'ble Sessions Court, Shivajinagar Pune,

for obtaining permission to serve the detention order on the

detenu and lodging him at Nashik Central Prison, Nashik on

02.01.2017. A report has also been placed on record

alongwith the affidavit. It is then argued that the Hon'ble

Court, Pune did not grant permission till 19.01.2017.

However, the Police Inspector, Crime, Lashkar Police Station,

made a request to the Hon'ble Court for obtaining permission

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to serve the detention order. The Hon'ble Court had issued oral

instructions to serve the detention order and therefore, the

detention order was served on 19.01.2017. It is also argued

that the permission was also granted by the concerned court

to transfer the detenu on 21.01.2017 to the Nashik Central

Prison and accordingly the detenu was transferred to Nashik

Central Prison.

7 We are amazed by the approach adopted by the

detaining authority. True it is that the detenu was already in

Magisterial custody in relation to the CR No. 158 of 2016,

which was registered at Lashkar Police Station. The detention

order was passed on 31.12.2016 and the committal order was

passed by the detaining authority, directing the detention of

the detenu in Nashik Central Prison, Nashik. It is not in dispute

that as per section 5 of the MPID Act, 1981, a person in respect

of whom the detention order has been made is to be detained

in such a place and under special conditions, as the State

Government may by general or special order specify. The

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detaining authority has, therefore, issued a committal order

and directed the detention of the petitioner in Nashik Central

Prison. Surprisingly, the executing authority who visited the

Yerwada Central Prison was asked to obtain NOC from the

court for executing the order of detention. Thereupon the

executing authority approached the Sessions Court, seeking

such a permission and application was kept pending from

02.01.2017 till it was disposed of by the learned Additional

Sessions Judge, Pune on 21.01.2017. Perusal of the

application dated 02.01.2017 made to the learned Sessions

Judge, Lashkar Court, Pune is based on a mis-conceived

notion that even for serving the order of detention, permission

of the court is required; whereas the permission ought to have

been required only for transferring the petitioner who was in

magisterial custody and housed in Yerwada Central Prison and

for being transferred to Nasik Central Prison, which was to be

his place of abode during the period of detention under the

impugned order of detention. However, in a mis-conceived

notion, an application was made to the Sessions Court even

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seeking permission to serve the order of detention. The

learned Sessions Judge, Pune on 21.01.2017 has rightly passed

an order and noted that it is for the jail authority to lodge the

accused in particular jail for which the court had no concern

and the concern of the court was only to ensure the presence of

the accused, at the time of the hearing before the court.

Before this un-productive exercise culminated, it is stated that

the court had granted oral permission to serve the order of

detention on 19.01.2017 and accordingly, it was served on the

detenu on the same day. In fact this exercise could have been

taken earlier as soon as the detention order was received since

there was no legal impediment in serving the order of

detention on the detenu, though already detained and placed

behind the bar in the Yerwada Central Prison and as regards

the shifting of the detenu to comply with the impugned order

of detention and detaining him in Nashik Central Prison, an

appropriate permission ought to have been sought. Since

there was no legal impediment in serving the order of

detention in Yerwada Central Prison, we expressed that the

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executing authority has failed to apply its mind and

unnecessarily indulged itself by seeking permission from the

Sessions Court and ultimately, it was only on the oral

instructions from the Sessions Court, the order came to be

served on 19.1.2017. This exercise could have been avoided

if the executing authority could have applied its mind and

would have realized that the purpose of detention is to detain

dangerous person and since the petitioner/detenu was already

in custody, the order could have been served upon him and

then the order could have been effective from the date on

which it was served. In any case we are of the opinion that it is

a procedural irregularity which the executing authority has

committed. We do not feel that this procedural irregularity

would benefit the detenu to canvass the submission that the

detention order itself is vitiated on the said count. We are

unable to accept the submission of Shri Tripathi that the

detention order itself is liable to be quashed on account of

delay in its execution. We fail to understand as to how a

subjective satisfaction recorded by the detaining authority, as

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reflected in the ground of detention, based on which the

detaining authority has arrived at a conclusion that it is

necessary to detain the petitioner under the provisions of

MPDA Act, 1981 is vitiated on the account of delay in serving

the order of detention.

We are, therefore, not inclined to accede to the

request of the learned counsel for the petitioner, to hold that

the order of detention becomes illegal on account of delay in

its execution and is liable to be quashed and set aside on the

said ground.

8 The learned counsel for the petitioner also pressed

into service ground no. (b) raised in the petition. His

submission is that neither the detaining authority in the

grounds of detention nor the Secretary, Advisory Board, in its

intimation letter has apprised the detenu of his right to lead

oral evidence in rebuttal by producing and examining

witnesses before the Advisory Board and to keep witnesses

ready on the day of interview. According to Shri Tripathi, a

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right to produce and examine witnesses is a constitutional

safeguard and it is so recognized by the Apex Court and this

Court. According to Shri Tripathi failure to apprise him of

such a valuable right, resulted in violation of his right to

defend his case effectively before the Advisory Board.

We have perused the response contained in the

affidavit, while dealing with the said ground argued by the

learned counsel for the petitioner. The detaining authority in

the grounds of detention which are communicated to the

petitioner on 31.12.2016 in paragraph no. 14 have apprised the

petitioner of his right of hearing in-person by the Advisory

Board and also for his right to seek assistance of his friend

during the course of hearing before the Advisory Board. The

grounds of detention contain the following paragraphs which

have appraised the petitioner/ detenu of his right before the

Advisory Board.

"14. You are also further informed that you shall be heard in person by the Advisory Board in due course if the board considers it essential to do so or if you

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so desire. If you desire to be heard in person by the Advisory Board, you may intimate your desire to the Advisory Board or to the Government of Maharashtra, through the Superintendent of the Jail, where you are detained, so that the Advisory Board may be intimated about it and necessary arrangements may be made to produce you before the Advisory Board on the date fixed by it for the purpose. You have also a right to seek an assistance of any friend who is not a legal practitioner during the course of hearing of the Advisory Board as well as other rights as prescribed in the Act."

9 The Secretary, Advisory Board, MPDA & VP Act,

198, Home Department (Special) State of Maharashtra in his

affidavit filed on 06.01.2018 has denied the said ground raised

by the detenu. Alongwith the said affidavit, the communication

from the Secretary, Advisory Board, MPDA & VP Act, 1981

addressed to the detenue dated 03.02.2017 has been placed

on record. From the said communication it is apparent that it

was received by the detenu on 06.02.2017 and the contents of

the said communication were explained to the detenu in the

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language which he understood. The said communication reads

as follows :

"I am directed to state that your case has been referred to the Advisory Board by Government in the Home Department (Special), for review and the date of hearing before the Advisory Board is fixed on 10 th February, 2017 at 03.00 p.m. in Room No. 65, Third floor, High Court Building, Mumbai. In the meantime, if you wish to make a representation against your detention order the MPDA & VP Act, 1981, you may please to do so and address it to the Chairman of the Advisory Board immediately. Such representation may please be forwarded to quadruplicate to the Secretary, Advisory Board on his address mentioned above and should be submitted through the Superintendent of the Jail where you have been detained. If you wish, you can also take the assistance of your friend and examine witness if any and keep him/them present at the time of your interview before the Advisory Board."

Perusal of the aforesaid communication reveals

that the detenu was informed that he can examine the

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witnesses, if any, and the witnesses are to be kept present at

the time of the interviews scheduled before the Advisory

Board i.e. on 10.02.2017. In the said affidavit filed by the

Secretary of the Advisory Board, it is stated on oath that the

case of the detenu was put up before the Advisory Board on

10.02.2017 and the hearing was attended by the detenu

alongwith his Advocate Mrs. Ansari. It is also stated that the

detenu was heard in-person by the Advisory Board and so

also his Advocate was heard on the same day. We are in

agreement with the argument of Shri Tripathi that the detenu

has a right to be apprised and made aware about the

constitutional right which he enjoys under the draconian law

like MPDA Act 1981 which flows from Article 22 of the

Constitution of India. The detenu has a right to be apprised

that he is entitled to produce witness before the Advisory

Board. We are cognizant of the fact that this right has been

recognized by the Hon'ble Apex Court in the case of A.K. Roy

v/s. Union of India, reported in 1982 Criminal Law Journal -

340 and various other decisions following it. However, in the

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present case, we are not convinced that there is any violation

of the said right and, in fact, the communication addressed by

the Advisory Board to the Petitioner, which has been placed on

record alongwith the affidavit filed by the Secretary, Advisory

Board, MPDA & VP Act, 1981, clearly reveals that the

petitioner/detenu was clearly made aware of such a right and

it was open for him to avail such a right during the course of

the proceedings before the Advisory Board and he has chosen

not to bring any witness on the date when the hearing was

conducted before the Advisory Board and he has chosen to be

represented through Advocate. We, therefore, are not

convinced with the ground no. 'b' raised by the counsel for the

petitioner in the writ petition.

10 This takes us to the last ground of the petitioner

raised in the petition, namely, that the detaining authority has

passed the detention order in a very casual and cavalier

manner without applying its judicious mind and that the

authority has taken into consideration four criminal cases

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registered against the detenu; whereas the details of one of the

case vide CR No. 158 of 2016 has been furnished to the detenu

alongwith the communication of the grounds of detention.

Perusal of the ground of detention reveals that the

detaining authority has given list of offences and preventive

action initiated against the detenu and it refers to several CRs

namely, CR No.431 of 1999 registered at Deccan Police Station,

Pune, CR No. 157 of 2014 registered at Lashkar Police Station

and CR No. 171 of 2014 registered at Wanwadi Police Station.

The said chart also includes the CR No. 158 of 2016

registered at Lashkar Police Station. The detaining authority

then mentions in para 3 that :

... ... ... "In the past, on 26.09.2000, you have been convicted in CR No. 431/1999 u/s. 353, 323 of IPC registered at Deccan Police Station, Pune. In the said offence, the Hon'ble J.M.F.C., A.C. Court, Pune sentenced you to suffer S.I. for six months on each counts and also fined you Rs.100/- (one hundred) on each counts and, in default of payment of fine, to suffer S.I. For three days on each counts. Even after

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serving the sentence of imprisonment in the said offence, you again committed serious offences such as attempt to commit murder, grievous hurt, riot, robbery etc.. in the jurisdiction of Wanawadi and Lashkar Police Stations, Pune. These offences are shown at serial no. 02,03 and 04 of the chart of offences".

In paragraph no. 4 of the grounds of detention, the detaining

authority observes as follows :

4. "In the recent past, your involvement is noticed in the following offences which are of serious nature and are suggestive of your tendencies and inclinations to perpetuate your criminal activities which are prejudicial to the maintenance of public order." ... ...

11 Thus the detaining authority has taken into

consideration three CRs mentioned at serial nos. 1 to 3 as past

offences and relied upon CR No.158 of 2016 for passing the

order of detention alongwith the two in-camera statements.

The detaining authority has specifically dealt with the said

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grounds and has responded to the same vide affidavit dated

10.01.2018 in para 12, by stating as under :

"It is kindly submitted that I have considered only one offence i.e. Lashkar Police Station C.R. No.158/2016 which was committed by the Detenu in recent past and within six months prior to the date of proposal and rest of the three offences at S. No. 1 to 3 in the chart were mentioned only to show the past criminal history of the Detenu. As such the I have never considered the above said three cases and hence the details of the said offences has not mentioned in the grounds of detention." ... ...

We, therefore, do not find the said ground raised by the

counsel for the petitioner is of any substance and worth

consideration.

12 In the light of the aforesaid discussion, we are of

the view that the detenu being a habitual criminal and he has

been indulging in dangerous and criminal activities, posing

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threat to the life and property of the public, has been detained

by the detaining authority by passing the impugned order,

after taking into consideration his past activities and by

relying upon his recent activity of indulging into by committing

offences punishable under sections 307, 143, 147, 148, 149 of

the IPC read with section 3/25 of the Arms Act alongwith in

camera statements. On the basis of the said material, the

detaining authority was subjectively satisfied that the activities

of the detenu are prejudicial to the maintenance of the public

order and in order to prevent him from indulging into said

activities, it was necessary to detain him. The detaining

authority has also taken cognizance of the fact that the detenu

is detained in Yerwada Central Jail for CR No. 158 of 2016 and

has filed in application seeking bail in the said offence and

after availing bail facility, the detenu is likely to resort to the

same activities which are prejudicial to the maintenance of

public order, in future and has, therefore, passed the order of

detention.

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The detaining authority has also apprised the

detenu of the constitutional safeguards available to him and for

permitting him to avail the rights made available to him under

those safeguards since the preventive detention is an

enactment which results into curtailment of liberty of a person

and it has to be strictly ensured that a person is deprived of the

same, only following due process of law.

13 We do not find any lacuna in the impugned order

of detention passed by the detaining authority. We find no

merit and substance in the contentions raised by the learned

counsel for the petitioner in support of seeking release of the

detenu. In the result the order of detention dated 31.12.2016

is upheld and the Writ Petition is dismissed. Rule is

discharged.

(SMT.BHARATI H.DANGRE,J.) (S.C.DHARMADHIKARI,J.)

.....

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