Raju S/O. Gularam Dharane vs The State Of Mah. Thr Secretary ...
2021 Latest Caselaw 16076 Bom

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

                         Criminal Writ Petition No.575/2021

               Raju s/o Ghularam Dharane,
               aged 36 years, Occ.-Private, R/o.-At Vathoda,
               Tah-Kelapur, P.S. Pandharkawada,
                Dist- Yawatmal.                                                         ... Petitioner.

                                                 Versus

               1. State of Maharashtra,
                  through its Secretary, Home Department,
                  Mantralaya, Mumbai-32.

               2. State of Maharashtra,
                  through the District Magistrate, Yawatmal,
                 Tah. Yawatmal, District Yawatmal.

               3. State of Maharashtra,
                  through the Police Superintendent, Yawatmal,
                  Dist- Yawatmal.

               4. State of Maharashtra,
                  through Sub-Divisional Police Officer,
                  Pandharkawada, Dist- Yawatmal.

               5. State of Maharashtra,
                   through Police Inspector, Police Station,
                   Pandharkawada, Dist- Yawatmal.                                   ... Respondents.
                ************************************************************************************************
                                      Mr. S.N. Nandeshwar, Adv for petitioner.
                                            Mr. T.A. Mirza, APP for State.

              **************************************************************************************************



                           CORAM: M.S. SONAK & PUSHPA V. GANEDIWALA, JJ.

DATE: 22-11-2021.

Oral Judgment (Per: M.S. Sonak, J.)

Heard Mr. Nandeshwar, learned Counsel for the

petitioner, and Mr. Mirza learned APP for the State.

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

request of learned Counsel for the parties.

3. The challenge in this petition is to the order dated

27-05-2021 made 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,

preventively detaining the petitioner for one year.

4. We have heard the learned Counsel for the parties.

5. The learned Counsel for the petitioner has raised several

grounds to assail the impugned detention order. However, according

to us, there is no necessity to advert all such grounds because this

petition is required to be allowed inter alia on the ground that there

was no proper verification of the in-camera statements of the two

witnesses even though the Detaining Authority has chosen to rely

upon the same.

6. In this case, the Detaining Authority has relied upon a

solitary instance reflected in Criminal Case No.0283/2021 in which

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the petitioner is alleged to have committed an offense under Section

65(E) of the Maharashtra Prohibition Act. In addition, the Detaining

Authority has relied upon two in-camera statements to purportedly

arrive at the subjective satisfaction that such preventive detention was

necessary.

7. Criminal Case No.0283/2021 relates to the incident

dated 18-03-2021. The petitioner was released on bail on the next

date i.e. on 19-03-2021. The two in-camera statements were recorded

on 23-01-2021. The first in-camera statement relates to an incident

of January 2021 and the second in-camera statement relates to an

incident of December 2020.

8. Mr. Nandeshwar, learned Counsel, pointed out that on

the copies supplied to the petitioner there is no reference to

verification of such statements by the Sub-Divisional Police Officer

(SDPO). Therefore, we requested the learned APP to apprise us as to

whether the original contains any such verification. Mr. Mirza learned

APP, placed before us the copy of the original detention order. In the

transcripts of the in-camera statements, there is an endorsement in

the margin styled as "verified", below which is appended the signature

of the SDPO.

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9. In this case, we are not going into the issue as to whether

the copy supplied to the petitioner ought to have also contained such

endorsement, having regard to the provisions of Articles 22(5) of the

Constitution of India. However, we find the verification that is

contemplated in such matters cannot be said to have been properly

carried out. The SDPO in this case should have verified the

correctness of the statement and further, should have also verified that

the witnesses were indeed not forthcoming to depose against the

petitioner. Further, all these aspects should have been recorded on the

statements or some other document. In absence of all this, we cannot

say that there has been a proper verification of the in-camera

statements.

10. In Vijaya Raju Gupta vs R.H. Mendonca and others,

reported in 2001(1) Mh.L.J. 449, the Division Bench of this Court,

following the decision of the Hon'ble Supreme Court in Phulwari

Jagdambaprasad Pathak (Smt) vs R.H. Mendonca and others, reported

in (2000) 6 SCC 751 held that in-camera statements of

persons/witnesses can be utilized by the Detaining Authority to arrive

at subjective satisfaction for making an order of detention. However,

the facts stated in the materials relied upon should be true and must

have reasonable nexus with the purpose for which the order is made.

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A necessary corollary, therefore is that the Detaining Authority must

be satisfied with the truthfulness of the statements made in the in-

camera statements. Therefore, when neither in the detention order

nor in the grounds of detention, the Detaining Authority has stated

anything regards the satisfaction about the truthfulness of the

statements made in the in-camera statements, the detention order will

stand vitiated.

11. Further, the Division Bench also found fault with the

detention order in which the Assistant Commissioner of Police merely

stated that he had verified the statements, but, there was no

contemporaneous document or material in support of the same. The

Division Bench also faulted the detention order because there was no

statement made by the Assistant Commissioner of Police or in the

grounds of detention that the statements made in the in-camera

statement were believed to be true. The position in the present case is

also quite similar. Neither the SDPO nor the Detaining Authority has

applied its mind to the in-camera statements or verified them as

explained by the Division Bench. Therefore, having regard to the law

laid down by the Division Bench in the Vijaya Raju Gupta (supra), the

impugned detention order warrants interference.

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11. The impugned detention order dated 27-05-2021 is

accordingly set aside and the rule is made absolute in terms of prayer

clause (i). The petitioner is ordered to be released from detention

forthwith, if not required in connection in any other matter.

                    (Pushpa V. Ganediwala, J.)                 (M.S. Sonak, J.)




Deshmukh