Sanjeev @ Sanjay @ Tatyasaheb ... vs The Comissioner Of Police Solapur ...
2021 Latest Caselaw 14133 Bom

BHAGYAWANT
TATYARAO                                             1/15                      WP-3035-2021.doc

PUNDE
Digitally signed by       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHAGYAWANT
TATYARAO PUNDE                  CRIMINAL APPELLATE JURISDICTION
Date: 2021.09.30
14:39:34 +0530
                                CRIMINAL WRIT PETITION NO. 3035 OF 2021

             Shri. Sanjeev @ Sanjay @ Tatyasaheb
             Nagnath Upade
             Age- 34 years, R/o. House No. 109,
             Santosh Nagar, Bale, Solapur                        ...PETITIONER

                      Versus

             1.       The Commissioner of Police
                      Solapur.

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

             3.       The Superintendent
                      Yerwada Central Prison,
                      Pune.                                      ...RESPONDENTS
                                                ...
             Ms. Jayshree Tripathi a/w. Mr. U.N. Tripathi, Ms. Swarali Kelkar
             i/by. Mr. Ritesh Thobde for Petitioner.
             Mr. J.P. Yagnik, APP for State.
                                                ...

                                              CORAM : S. S. SHINDE &
                                                      N. J. JAMADAR, JJ.

RESERVED ON : 28th SEPTEMBER, 2021.

PRONOUNCED ON: 30th SEPTEMBER, 2021.

JUDGMENT: [PER S.S. SHINDE, J.]

1. This petition takes an exception to the order of Detention

bearing No. D.O. No. 07/CB/DP/2021 dated 17.05.2021 issued

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under Section 3 of the Maharashtra Prevention of Dangerous

Activities Act, 1981 ('M.P.D.A. Act') by the Respondent No. 1.

2. During the course of hearing, the learned counsel for the

petitioner restricted her arguments to the contentions raised in

grounds (b) and (d).

3. It is submitted that there was delay in passing the order

of detention. Learned counsel for the petitioner invites attention of

this Court to the ground no. (b), so also the affdavit fled by

respondent and submits that there is a considerable delay in

passing the order of detention and on that ground alone the petition

deserves to be allowed.

In support of aforesaid contention, the learned counsel

pressed into service the judgments of Hon'ble Supreme Court in the

cases of Pradeep Nikant Paturakar Vs. S. Ramamurthi & Ors 1,

Shakeel Sait Vs. C.D. Singh & Ors 2, Niyazuddin 2 Sonu Ansari Vs.

State of Maharashtra3, Mohsin Ahmed Vs. State of Maharashtra 4,

Parvez Faizulla Khan Vs. A.K. Roy & Ors5 and Aalam Yousuf Shaikh

Vs. Commissioner of Police Pune6.

1    1993 Supp (2) SCC 61

3    2013 ALL MR (Cri) 3870
4    2014 ALL MR (Cri) 2409



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4. Learned counsel appearing for the petitioner further

submits that it was incumbent upon the respondent authority to

place on record the report submitted by the investigating offcer in

C.R. No. 127/2021, thereby adding Section 3(2) (Va) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989.

In support of aforesaid submission, the learned counsel

for the petitioner placed reliance on the ratio laid down in the

following judgments of Hon'ble Supreme Court in the cases of V.C.

Mohan Vs. UOI & Ors7, Kamlal K. Khushlani Vs. UOI8 and UOI Vs.

Ramu Bhandari9.

5. It is submitted that the detaining authority placed

reliance upon the in-camera statements of two witnesses and one

C.R. No. 127/2021 registered with Faujdar Chawadi Police Station

for the offences punishable under Section 143, 144, 147, 323, 324,

504, 506 of IPC read with Section 3(2)(Va) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is

submitted that the in-camera statements of two witnesses recorded

on 1st March 2021 and 3rd March, 2021 about the incidents alleged

7 2002 SCC (Cri) 648 8 1981 SC 814 9 (2008) 17 SCC 348

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to be taken place in the month of January, 2021 and February 2021

and detention order has been passed on 17 th May, 2021. Therefore,

there is a considerable delay in between the date of alleged

incidents, recording of in-camera statements and passing of order of

detention. Therefore the said in-camera statements cannot be relied

upon and in case those statements are excluded from consideration

what remains is only one offence (C.R. No. 127/2021) registered

against the petitioner. Therefore, the learned counsel appearing for

the petitioner prays that the petition may be allowed.

6. On the other hand, the learned APP appearing for

Respondent-State and its offcials relied upon the affdavit in replies

fled by the Commissioner of Police, Solapur City, Solapur and

Deputy Secretary Government of Maharashtra, Home Department

(Special), Mantralaya, Mumbai and submitted that the detention

order has been passed in accordance with the procedure under the

M.P.D.A. Act. It is submitted that the detaining authority

specifcally stated that the petitioner has committed offences which

would fall within the Chapter XVI and XVII of IPC. The authority

has also perused the in-camera statements of witnesses and arrived

at the subjective satisfaction and passed the order of detention. It is

submitted the DCP who scrutinized the proposal of detention was

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tested positive of Covid-19 and he was on medical leave from 26 th

February, 2021 to 18th March, 2021, and, therefore, there was a

delay in submitting the proposal onward to the detaining authority.

Therefore, the learned APP submits that the petition may be

rejected.

7. We have given careful consideration to the rival

submissions. With the able assistance of learned counsel for the

petitioner and learned APP, perused the pleadings and grounds

taken in the petition, anenxures thereto, replies fled by the

respondents and the original record maintained by the offce of

respondents in relation to the detention proceedings initiated

against the petitioner.

Upon careful perusal of ground (b) taken in the petition

and replies fled by the respondents it appears that in-camera

statements of witness 'A' and 'B' were recorded and verifed in

between 2nd and 4th March, 2021 for the incident occurred in the

last week of January and frst week of February, 2021. The proposal

for detention was initiated on 5th March, 2021 and the detention

order was passed on 17th May, 2021. If the delay from initiation of

proposal till passing of the detention order is taken into

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consideration, the same is not properly explained by the detaining

authority. It appears that DCP of concerned Zone scrutinized the

proposal for detention and gave endorsement on 8 th March 2021 and

forwarded the proposal to DCP (Crime) on the very same day.

However, DCP (Crime) tested positive of Covid-19, so he was on

medical leave from 22nd February, 2021 to 18th March, 2021. On 25th

March, 2021 the said DCP (Crime) scrutinized the proposal.

However, the delay from 18th March, 2021 till 25th March, 2021

remained unexplained. As already observed the proposal was

scrutinized by the DCP (Crime) on 25 th March, 2021, however, the

said proposal was submitted on 5th April, 2021. There was delay of 9

days which remained unexplained.

8. On 8th April, 2021 ACP (Crime) perused the proposal, all

relevant documents and submitted to DCP (Crime) on the same day.

On 15th April, 2021 DCP (Crime) perused the proposal, documents

and applied his mind and with recommendation submitted the

proposal to the detaining authority on the same day. It shows that

the delay between 8th April, 2021 to 15th April 2021 remained

unexplained, when the perusal of the said report was done on the

same day. DCP (Crime) has submitted proposal to the detaining

authority on 15th April, 2021. The detaining authority gave

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endorsement and perused the proposal and documents on 5 th May,

2021. Consequently, there was delay about three months in passing

the order of detention.

There is no denial to the fact that the in-camera

statements of witnesses were recorded on 1st March, 2021 and 3rd

March, 2021 for the incidents occurred in the month of January

2021 and February 2021, however, the order of detention was

passed in the month of May, 2021, so there is considerable gap

between the recording of in-camera statements about alleged

incident happened in the month of January & February 2021, and

passing of the impugned order of detention, while the C.R. No.

127/2021 was registered on 16th February, 2021 with the Faujdar

Chawadi Police Station. Even from the registration of aforesaid

offence there is a delay of three months in passing the impugned

order of detention. What matters is the explanation offered by the

respondent authorities for such considerable delay.

9. The Hon'ble Supreme Court in the case of Pradeep

Paturakar (Supra) in Para 9 to 14 held thus:-

9. According to Mr. Gupte, the explanation given by the High Court for the delay that the "procedure required

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sometime before the powers are exercised" is not the explanation offered by the detaining authority and there fore that explanation should not be accepted to the prejudice of the right of the detenu. In support of his submission that the unexplained and undue delay in passing the order vitiates the impugned detention order, he drew our attention to a decision of this Court in T.A. Abdul Rahman v. State of Kerala, to which one of us (S. Ratnavel Pandian, J.) was a party. In that case after recapitulating the various decisions on this point the following dictum has been laid down: (SCC p. 748, para 10) "The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention.

However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether

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the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case."

10. Reference also may be made to Hemlata Kantilal Shah v. State of Maharashtra, in which case this Court observed: (SCC p. 655, para 16) "Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable.

What is required by law is that the delay must be satisfactorily explained by the detaining authority."

11. We feel that it is not necessary to refer to all the decisions on this point.

12. Countering the argument of Mr. Gupte, the learned Additional Solicitor General drew our attention to Rajendrakumar Natvarlal Shah v. State of Gujarat, in which this Court held that the non-explanation of the delay between 2nd February and 28th May, 1987 could not give rise to legitimate inference that the subject of satisfaction arrived by the District Magistrate was ; not genuine. In the same decision, the learned ' Judges have pointed out "It all depends on the nature of the acts relied on, grave and

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deter mined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation". A perusal of the various decisions of this Court on this legal aspect shows that each case is to be decided on the facts and circumstances appearing in that particular case.

13. Coming to the case on hand, the detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March, 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act.

14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specifc plea of delay, we are constrained to quash the detention order. Accordingly we allow the appeal, set aside the judgment of the High Court and quash the impugned detention order. The detenu is directed to be set at liberty forthwith.

As already observed herein before that the respondents

have not property explained the delay from the date of incident till

order of detention was passed. There is no plausible explanation

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given why there was gap in recording statements of witnesses 'A' and

'B' from the date of alleged incident.

10. The learned counsel appearing for the petitioner pressed

into service the ground (d) of the petition, which reads as under:-

d. The petitioner says and submits that the detaining authority has categorically stated in the grounds of detention at para 5.1 while narrating the facts of C.R. No. 127/2021, that on "18.02.201 during the course of investigation in the said offence Sec. 3(1) (R) (S) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act) was added but the said section was not attracting so Sec 3(2) (VA) was proved in the said offence and was added by submitting report to Hon'ble Court". It is to be noted that even though a specifc mention of the said documents which is about adding certain sectionsand deleting certain sections, by submitting report to the Hon'ble Court, (such report is a vital document) which is referred to and relied on by the detaining Authority. No copy of such a vital document is given to the petitioner in the compilation of documents. As a result of non-furnishing most relevant and vital document which is referred to and relief on in the grounds of detention the petitioner is unable to make any effective representation. Non furnishing vital document also amounts to non- communication of grounds of detention, hence both the facets of Article 22(5) of the Constitution of India is violated. The order of detention is illegal and bad in law liable to be quashed and set aside.

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11. In reply to the said ground (d) it is stated in the reply

fled by the detaining authority that while issuing the detention

order all the relevant documents regarding detention order along

with its Marathi translation was served to the petitioner at the time

of detention. During the course of investigation in C.R. No.

127/2021, Section 3(1)(R)(S) of the Scheduled Caste and Scheduled

Tribes (Prevention of Atrocities) Act was added but the ingredients of

said section was not attracting, therefore, Section 3(2) (VA) was

proved in the said offence. The said exercise was already mentioned

in the remand application furnished to the petitioner at the time of

detention which is placed on page no. 62 of the compilation.

Acknowledgment has also been obtained regarding it from the

petitioner.

12. It clearly appears that that no such copy of the report

which is mentioned in Ground (d) was supplied to the detenu. There

is a mention in the reply that there was mention about said report

in the remand application, but same was not supplied as per

requirement in law.

13. The Supreme Court in the case of Kamla Khushlani

(supra) in para 4 and 7 held as under:-

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"4. The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and must be supplied to the detenue pari passu the grounds of detention. If the documents and materials are supplied later, then the detenue is deprived of an opportunity of making an effective representation against the order of detention. In this case, the court relied upon the ratio in Icchu Devi Choraria's case (supra) extracted above. We fnd ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench. This Court has invariably laid down that the before an order of detention can be supported, the constitutional safeguards must be strictly observed.

7. It is well settled that the Court frowns on preventive detention without trial because the detenu is deprived of the right of proving his innocence in a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 of Art. 22 (5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention. This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in anti-

national activities like smuggling, etc. We are fortifed in our view by a decision of this Court in Sampat Prakash v. State of

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J. and K., (1969) 3 SCR 574: (AIR 1969 SC 1153) where the following observations were made:

"that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal."

14. Yet in another case Union of India Vs. Ranu Bhandrai

(surpa), in para 27 it is held as under:-

"27. It has also been the consistent view that when a detention order is passed all the material relied upon by the detaining authority in making such an order, must be supplied to the detenu to enable him to make an effective representation against the detention order in compliance with Article 22(5) of the Constitution, irrespective of whether he had knowledge of the same or not. These have been recognised by this Court as the minimum safeguards to ensure that preventive detention law, which are an evil necessity, do not become instruments of oppression in the hands of the authorities concerned or to avoid criminal proceeding which would entail a proper investigation."

15. Therefore, it follows from the aforesaid two authoritative

pronouncements of Supreme Court that the material or the

documents relied upon by the detaining authority while passing the

order of detention needs to be supplied to the detenu so as to enable

him to make an effective representation.

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16. In the light of discussion in foregoing paragraphs, we are

of the view that the detention order cannot be legally sustained.

Hence, the following order:-

ORDER

1. The impugned order of detention bearing No. 07/CB/DP/2021 dated 17.05.2021 passed by Respondent No. 1, is quashed and set aside.

2. The Petitioner is to be released forthwith, unless required in any other offence or proceedings.

3. Rule is made absolute to above terms.

4. The writ petition stands disposed of.

5. Parties to act upon an authenticated copy of this order.

( N. J. JAMADAR, J.) (S. S. SHINDE, J.)

Bhagyawant Punde