Sheikh Yetal S/O Sheikh Jabbar vs State Of Mah. Thr. Advisory Board ...
2021 Latest Caselaw 17725 Bom

3-CRI-WP-627-2021.odt                             1



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.

         CRIMINAL WRIT PETITION NO. 627 OF 2021

Sheikh Yetal s/o Sheikh Jabbar,
aged about 25 years, Occ. Pvt. Work,
R/o Khair Mohammad Plot,
Dapaki Road, Akola
(At present Central Prison, Aurangabad).
                                                        ...PETITIONER

            Versus

1. State of Maharashtra,
   through Advisory Board of Government of Maharashtra,
   Home Department (Special), Second Floor,
   Main Building, Mantralaya, Mumbai - 32.

2. The Collector & District Magistrate,
   Akola.
                                                      ...RESPONDENTS

Shri A.K. Bhangde, Advocate for the petitioner.
Shri T.A. Mirza, A.P.P. for the respondents.

                     .....

            CORAM : M.S. SONAK AND
                    PUSHPA V. GANEDIWALA, JJ.
            DATED : DECEMBER 21, 2021.


JUDGMENT (PER : M.S. SONAK, J.) :

Heard Mr. A.K. Bhangde, learned counsel for the

petitioner, and Mr. T.A. Mirza learned A.P.P. for the respondents.

2. Rule. The rule is made returnable forthwith at the

request and with the consent of learned counsel for the parties.

3. The challenge in this petition is to the detention

order dated 12/07/2021 and its confirmation on 12/08/2021

preventively detaining the petitioner 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 ("the said Act").

4. Mr. Bhangde, learned counsel has raised several

contentions to challenge the impugned detention orders. He

has however focused on the ground that in this case, there is

no satisfaction recorded by the authorities on the aspect of the

unwillingness of the witnesses to give in-camera statements or

even otherwise to depose before the regular Courts of law

should a prosecution be launched against the petitioner. He

submitted that the record of such satisfaction is crucial, and in

the absence of the same, the impugned detention order is

vitiated. He relies on Pratap s/o Ajay Kharare Vs. The State of

Maharashtra & Ors. (Criminal Writ Petition No. 531/2021

decided on 28/10/2021) and Sanjay s/o Ramlal Shahu Vs.

State of Maharashtra & Anr. (Criminal Writ Petition No.

768/2015 decided on 01/02/2016).

5. Mr. Mirza, learned A.P.P. defends the impugned

order based on the grounds set out therein. He submits that the

detaining authority was satisfied that the witnesses are not

coming forward to depose against the petitioner. He states that

even the verification confirms this aspect, and therefore, this

petition may be dismissed.

6. We have considered the rival contentions and

perused the material on record. We have also considered the

earlier decisions in the cases of Pratap s/o Ajay Kharare (supra)

and Sanjay s/o Ramlal Shahu (supra). According to us, the

ground raised by Mr. Bhangde is sufficient to interfere with the

impugned detention order in the present case.

7. In this case, there are two in-camera statements

that the detaining authority has relied on. These in-camera

statements are verified by the Sub-Divisional Police Officer.

Now, this verification in the first instance records a satisfaction

that the incident or the event referred to in the in-camera

statements is true and correct. Secondly, the verification also

records a satisfaction that the petitioner is indeed causing

terror in the locality and creating a situation that is disturbing

the public order.

8. There is no satisfaction recorded by the SDPO

about the two witnesses who have given the in-camera

statements not willing to come forward to depose against the

petitioner should a criminal prosecution be launched against

the petitioner. Record of such satisfaction is quite crucial

because normally an order of preventive detention can be

made if the alleged criminal activities of the detenue cannot be

addressed by the regular procedures prescribed in the various

criminal legislation enacted for this purpose.

9. In almost identical circumstances, this Court in the

case of Sanjay s/o Ramlal Shahu (supra) made the following

observations in paragraphs 5 to 8 :

"5. Shri Nandeshwar, learned Counsel however has urged that subjective satisfaction required to be reached is about the unwillingness of such person to come forth to give any statement. He submits that thus, identity of this person is kept secret so as to extend him necessary protection. As identity is kept secret, and therefore, the person like petitioner whose liberty is at stake, does not get an effective opportunity to traverse those statements, requirement of recording subjective satisfaction is mandatory. According to him, the Police Commissioner no where expressly finds that the persons whose in-camera statements are relied upon by him have expressed un-willingness to come forward to depose against the petitioner or that because of terror allegedly spread by the petitioner in the locality, other persons are not ready and willing to come forward to give any statement or report.

6. Perusal of copies of in-camera statements made available to petitioner by the detaining authority show that statements are dated 09.04.2015, and the same have been verified lateron by the Assistant Commissioner of Police, Sakkardara Region, Sakkardara on 06.06.2015. The said verification shows that the person whose in-camera statement was recorded appeared before the Assistant Commissioner of Polcie on 06.06.2015, and his statement recorded earlier on 09.04.2015, was read over to him and he accepted that it was correctly recorded and also accepted his signature upon it. Thereafter, it is mentioned that the spot was visited by the Assistant Commissioner of Police and the event, as recorded, was verified from the traders in the locality. The Authority (ACP), then mentions that he was satisfied that such an event had happened. It is further

mentioned that the terror of petitioner in the locality was perceived by him. Both the reverifications are on same lines.

7. The original records are produced by the learned Addl. P.P. before us. Perusal of in-camera statements taken out from sealed envelope shows that the same do not bear any counter signature of the Police Commissioner to show that the Police Commissioner has gone through those statements or its verification. It is no doubt true that the contents thereof are produced in paragraphs mentioned supra, but, fact of or effect of verification has not been even mentioned.

8. Reproduction of contents of those statements cannot show subjective satisfaction envisaged in law. The subjective satisfaction has to be about unwillingness of such persons to come forward and to give statement against the petitioner. There is no whisper about this aspect in the impugned order. The records also do not show that any effort was made by the Police Commissioner to have a dialog in this regard with the Assistant Commissioner of Police. The impugned order which is based upon such in-camera statements is, therefore, bad in law."

10. Further, this Court in the case of Pratap s/o Ajay

Kharare (supra) in almost identical circumstances and by

following the earlier decision in Sanjay s/o Ramlal Shahu

(supra) quashed the detention order on the ground now urged

by Mr. Bhangde in this petition.

11. Therefore, following our earlier decisions in the

cases of Pratap s/o Ajay Kharare (supra) and Sanjay s/o Ramlal

Shahu (supra), we quash the impugned detention order and its

confirmation. The rule is made absolute in terms of prayer

clauses (ii) and (iii) which reads as follows :

"(ii) Quash and set aside the order of detention passed by the Respondent No.2 dated 12.07.2021 (Annexure-

2) along with the Final Order passed by Respondent No.1 dated 12.08.2021 (Annexure-1).

(iii) Issue appropriate writ, direction or orders to respondents to forth with release the petitioner from Central Prison, Aurangabad."

12. We, however, clarify that the petitioner is to be

released forthwith unless his incarceration is required in any

other matter. There shall be no order for costs.

(PUSHPA V. GANEDIWALA, J.)                    (M.S. SONAK, J.)


                               ******                 Digitally signed bySUMIT CHETAN
                                                      AGRAWAL
                                                      Signing Date:22.12.2021 17:35

Sumit