Bombay High Court
Adil Khan Nader Khan Pathan vs The State Of Maharashtra And ... on 12 April, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1210 OF 2021
Adil Khan s/o Nader Khan Pathan,
Age 27 years, Occ. Social Worker,
R/o Nehru Nagar, Katkat Gate,
Aurangabad. ...Petitioner...
Versus
1. The State of Maharashtra,
Through It's Secretary, Home Department,
Mantralaya, Mumbai.
2. The Commissioner of Police,
Aurangabad,
Police Commissioner Offce,
District Aurangabad. ..Respondents..
...
Mr. Quadri S.M.Saquebuddin h/f Mr. G.L. Deshpande,
Advocate for the petitioner.
Mr. R.D.Sanap, APP for the respondents No.1 and 2.
...
CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.
...
Reserved on : 12.02.2022
Pronounced on :12.04.2022
...
JUDGMENT :- ( Per V. K. Jadhav, J.)
1. Rule. Rule made returnable forthwith. By consent
of the parties, heard fnally at admission stage.
2. By way of this writ petition, the petitioner is
challenging the order of detention No.2021/MPDA/DET-
4/CB-70 dated 12.8.2021 under section 3(2) of the
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Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggters, Drug-offenders, Dangerous
Persons, Video Pirates, Sand Smugglers and Persons
Engaged in Black Marketing of Essential Commodities
Act, 1981 (for short hereinafter called as 'the Act of
1981') passed by the respondent no.2, confrmed by the
Advisory Board in reference no.128 of 2021 by order
dated 22.9.2021 observing that there are suffcient
grounds for the detention of the above detenue under
section 3 (3) of the Act of 1981. Hence, this writ
petition.
3. The learned counsel for the petitioner submits
that, the detaining authority has not assigned any
cogent reasons nor arrived at a subjective satisfaction
about the activities of the petitioner pre-judicial to the
maintenance of the public order. Learned counsel
submits that, in terms of section 2(a)(iv) of the Act of
1981 a 'dangerous person' means he is engaged, or is
making preparations for engaging, in any of his
activities as a dangerous person, which affect adversely,
or are likely to affect adversely, the maintenance of
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public order. The learned counsel submits that in terms
of the explanation for the purpose of clause (a), the
public order shall be deemed to have been affected
adversely, or shall be deemed likely to be affected
adversely, if any of the activities of any of the persons
referred to in this clause, directly or indirectly, is
causing or calculated to cause any harm, danger or
alarm or a feeling of insecurity, among the general
public or any section thereof. The learned counsel
submits that, in terms of section 2 (b-1) "dangerous
person" means a person, who either by himself or as a
member or leader of gang, habitually commits, or
attempts to commit or abets the commission of any of
the offences punishable under Chapter XVI or Chapter
XVII of the Indian Penal Code or any of the offences
punishable under Chapter V of the Arms Act, 1959.
Learned counsel submits that the detenue had given no
opportunity to make a effective representation to the
competent authority, which amounts to clear breach of
the basic principles of preventive detention law under
Article 22(5) of the Constitution of India. Learned
counsel submits that, the order of detention is illegal
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and bad in law for non-furnishing of the documents in
the language known to the detenue. The learned
counsel for the petitioner submits that the detaining
authority has referred fve cases in the impugned order
and out of which Crime No.303 of 2021 registered with
Begumpura Police Station is under section 160 of the
Indian Penal Code. Learned counsel for the detenue
submits that, section 160 of IPC do not fall within the
ambit of chapter XVI and XVII of the Indian Penal Code,
which is basic requirement of the detention order. Thus,
the detaining authority has considered irrelevant
materials for passing an order of detention. The same
amounts to non-application of the mind by the
detaining authority.
i] Learned counsel for the detenue submits that
crime no.225 of 2018 registered with City Chowk Police
Station, Aurangabad for the offence punishable under
sections 143, 147, 148, 149, 337, 120(b) of the IPC are
concerned, they are not the independent offences
punishable for not more than three years of
imprisonment. Learned counsel submits that, even
section 337 of the IPC is also not more than six months
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of imprisonment. Learned counsel submits that, so far
as crime no.102 of 2019 registered with City Chowk
Police Station, Aurangabad for the offence punishable
under sections 324, 341, 504, 506, 34 of the IPC is
concerned, it is pending for trial. Learned counsel for
the detenue submits that the third crime bearing No.156
of 2019 registered with Chikalthana police Station,
Aurangabad, which is pending for trial and the detenue
has been released on bail. In paragraph no.7 of the bail
order, it has been specifcally observed by the Court
granting bail that no specifc role has been attributed to
the detenue except his presence on the spot.
ii] Learned counsel submits that two in-camera
statements referred in the impugned order are vague. In
the in-camera statement, witness no.A' has stated that
"on a day in the frst week of June, 2021 at about 20.30
hours while he was returning from house, the incident
took place" whereas, in a copy of the witness 'A'
statement dated 2.7.2021 states that "in the last week of
May 2021, one day at about 20.30 hours, the incident
had taken place." Thus, the same is in complete
variance with the material document (referred to and
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relied on). It is not clear as to when the exact incident
had taken place since two dates and months are
mentioned. Thus, the statement is vague and cannot be
relied on. The variance has created doubt and has
affected the right to make effective representation on the
part of the detenue.
iii] So far as in-camera statement of witness 'B'
recorded on 3.7.2021 is concerned, vague statements
have been made without referring the time, date, place
and month of the incident Thus, the order of detention
is illegal and bad in law.
iv] Learned counsel for the detenue submits that, if
the crime and in-camera statements are excluded then
remains only one crime i.e. crime no.304 of 2021. It is
well settled that a valid detention order cannot be
passed on a single solitary incident. There has to be
more than one offence/incident of the detenue so as to
clamp Preventive Detention law against detenue.
v] The learned counsel for detenue submits that the
order of detention dated 12.8.2021 came to be issued by
the Detaining authority and the detenue was detained
on 15.8.2021 and he was executed and served only one
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page of order. Subsequently, the grounds of detention
were served upon the detenue and on the very day i.e.
on 18.8.2021 the detention order was approved by the
State Government. It is to be noted that a representation
of the detenue dated 23.8.2021 addressed to the
detaining authority was received by the said authority
on 24.8.2021, and, concerned authority has declined to
consider the representation of the detenue since the
approval of the order was already done on 18.8.2021.
Thus, the detenue has lost the opportunity to make an
effective representation to the detaining authority.
Thus, pending approval of the detention order, the
detenue has a right to make a representation to the
detaining authority. Learned counsel submits that the
impugned order is liable to be quashed and set aside.
4. The learned counsel for the petitioner, in order to
substantiate his contentions, placed reliance on the
following judgments :-
(1) Rafat Yar Khan and others Vs. The State of
Maharashtra in Criminal Application
no.2238/2021 and 2248/2021 order dated
18.11.2021.
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(2) Maharashtra State through Police Inspector,
Police Station City Chowk, Aurangabad Vs.
Adil Khan Nader Khan in RCC No.2485/2019.
(3) Banka Sneha Sheela Vs. The State of Telangana
and others in Criminal Appeal No.733 of 2021.
(4) Judgment of this Hon'ble Court Criminal Writ
Petition No. 297/2008 (Devanand Vs. State);
(5) Judgment of this Court in the case of Nasibula
Khan Vs. M.N.Singh reported in 2002 (1) Mh.L.J
(6) Judgment of this Hon'ble Court in the case of
Hrishi @ Sarjerao Baban Takele Vs. District
Magistrate, in Criminal Writ Petition
No.388/2017.
(7) Devanand @ Deva Radhakrishna Mishra Vs. The
State of Maharashtra and another in Criminal
Writ Petition No.287 of 2008.
(8) Viaya Raju Gupta Vs R H Mendonca and others
reported in 2000 (1) Mh.L.J. 449.
5. The learned APP submits that, the detenue is not
entitled to challenge the order of detention on the basis
of the grounds on which the detention has been effected
in view of section 5-A of the Act of 1981 and, therefore,
the petition is deserves to be dismissed at this stage
only. The learned APP submits that, suffciency or
insuffciency of the grounds of detention cannot be a
subject matter on the basis of which the petition could
be entertained under article 226 and 227 of the
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Constitution. Learned APP further submits that it is
subjective satisfaction of the detaining authority that
the acts of the petitioner are prejudicial to the
maintenance of the public order and with a view to
prevent him from committing such acts, detention is
necessary.
i] The learned APP submits that the petitioner is a
"dangerous person" as defned in the Act of 1981 and he
has committed serious offences i.e. riot, causing hurt by
an act which is dangerous to human life, attempt to
murder, murder, voluntarily causing hurt, voluntarily
causing hurt by dangerous weapons, wrongful
restraining persons, committing affray, house tress-
pass, etc. The learned APP submits that, as a result of
his dangerous activities, the persons residing in the
local jurisdiction of Police Station Begumpura and
adjoining areas remain under constant fear and terror.
Illegal and dangerous activities have become a serious
threat and source of danger to the lives of law abiding
and peace loving citizens of Aurangabad City and has
become threat to the public order. The learned APP
submits that the activities of the detenue has become
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hazardous and prejudicial to the maintenance of public
order in the area of Begumpura Police Station,
Aurangabad and adjoining areas.
ii] The learned APP submits that, after considering
the seriousness of the aforesaid crimes mentioned in
the detention order, the Police Inspector of Police
Station, Begumpura has conducted confdential inquiry,
and in the inquiry, it was disclosed that due to his fear,
nobody dares to give statement openly against him.
Thus, on the assurance that their names and identity
particulars would be kept secret, Police Inspector
Begumpura Police Station succeeded in recording the
in-camera statements of witness 'A' and 'B'. On
completion of the confdential inquiry, on 5.7.2021 Police
Inspector of Police Station Begumpura, Aurangabad
submitted a proposal to the Detaining Authority i.e.
respondent no.2 for taking action under section 3(1) of
the Act of 1981. The Deputy Commissioner of Police,
Zone-I, Aurangabad had verifed the in-camera
statements of witness 'A and B' and submitted the
report to respondent no.2 on 27.7.2021.
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iii] The learned APP submits that, in view of the
offences registered against the detenue and in-camera
statements of the witnesses, the petitioner is a
"dangerous person" as defned in the Act of 1981 as he
has committed serious offences punishable under
Chapter XVI and XVII of the IPC. The learned APP
submits that, the detaining authority after having
subjective satisfaction passed the detention order on
12.8.2021. On 14.8.2021 detailed report alongwith the
detention order, grounds of detention and relevant
documents were submitted to the Additional Chief
Secretary, Home Department, Mantralaya, Mumbai for
approval under section 3(3) of the Act of 1981.
Thereafter, on 15.8.2021, detention order was served on
the petitioner and he was detained in Central Prison,
Aurangabad. The learned APP submits that, in terms
of the provisions of section (8) of sub-section (1), the
grounds of detention and other relevant papers
alongwith its Marathi Translation were served on the
petitioner/detenue on 17.8.2021 in time. After receipt of
report submitted by the detaining authority i.e.
respondent no.2, the State Government vide order dated
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30.9.2021 has confrmed the detention order. The
learned APP submits that, there is no delay in passing
the order and execution of the order and all the
mandatory provisions have been complied with in a
stipulated period. The learned APP submits that even
the confrmation order is served on the petitioner on
17.10.2021.
iv] The learned APP submits that, the detenue has
made a representation dated 23.8.2021 to the detaining
authority and it was received to the offce on 25.8.2021.
However, till that time, the detention order issued by
respondent no.2 was approved by the State Government
vide Government Order dated 18.8.2021. Thus, the
detenue's right as mentioned in paragraph no.14 of the
grounds of detention to represent against detention to
the detaining authority i.e. respondent no.2 was
automatically extinguished and, accordingly, it was
communicated to the detenue on 28.8.2021. The learned
APP submits that there is no provision in the Act of
1981 to issue a show cause notice in preventive
detention before passing the detention order. The
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learned APP submits that, there is no substance in this
writ petition and the same is liable to be dismissed.
6. Learned APP for the respondents/State in order to
substantiate his submissions, placed reliance on the
following judgments :-
(1) T. Devaki vs. Government of Tamil Nadu and
others, reported in (1990) 2 MANU/SC/0201/1990;
(2) Secretary to Government of Tamil Nadu Public (law
and Order) Revenue Department and Ors. vs.
Kamala and others reported in (2018)
MANU/SC/0355/2018;
(3) Tushar vs. The State of Maharashtra and others
reported in MANU/MH/2402/2017;
(4) Siddhesh Bala Mhaskar vs. The Commissioner of
Police, Thane and Ors. reported in
MANU/MH/0354/2020;
(5) Anna Durai and Ors. Vs. A.N.Roy and Ors.MANU/
MH/0725/2006;
(6) Santosh vs. The State of Maharashtra and Ors.
reported in MANU/MH/0270/2013;
(7) Istiyak Ahmed Siddiqui vs. A.N. Roy and Ors.
reported in MANU/MH/00586/2005;
(8) Abdul Nasar Adam Ismail through Abdul Basheer
Adam Ismail vs. The State of Maharashtra and Ors.
reported in MANU/SC/0292/2013;
(9) Hemlata Kantilal Shah vs. The State of
Maharashtra and Ors. reported in
MANU/SC/0496/1981;
(10) Amar @ Amarsingh Gulabsingh Rathod Vs. The
State of Maharashtra and Ors. reported in 2003
Bom. C.R. (Cri.) 1573;
14 crwp 1210.2021.odt
(11) Dhanji Ram Sharma vs. Superintendent of Police,
North Dist. Delhi Police Ors. reported in
MANU/SC/0317/1966;
(12) The Collector and District Magistrate, W.G.Dist.
Eluru, Andhra Pradesh and Ors.reported in
MANU/SC/1050/2004;
(13) Sunil Fulchand Shah vs. Union of India (UOI) and
Ors. reported MANU/SC/0109/2000;
(14) State of Gujarat Vs. Adam Kasam Bhaya reported
in MANU SC/0234/1981;
(15) Ashok Kumar Vs. Delhi Administration and Ors.
reported in MANU/SC/0052/1982;
(16) Nagendra Nath Mondal Vs. The State of West
Bengal reported in MANU/SC/0181/1972;
(17) Sahib Singh Dugal Vs. Union of India (UOI)
reported in MANU/SC/0085/1965;
(18) Haradhan Saha Vs. The State of West Bengal and
Ors. & Madan Lal Agarwala Vs. The State of West
Bengal and Ors. reported in (1973) 3 SCC 198;
(19) Champalal Punjaji Saha Vs. State of Maharashtra
reported in (1982) 1/SCC/507;
(20) Commissioner of Police and Ors Vs. C.Anita (Smt)
reported in (2004) 7/SCC/467;
(21) Dropti Devi and Another Vs Union of India and Ors.
reported in (2012) 7/SCC/499;
(22) Union of India and Another Vs. Chaya Ghoshal
(Smt) and Another reported in (2005) 10/SCC/97;
and
(23) Varsha Shyam Amlani Vs. State of Maharashtra
and Ors. reported in 2006(2) MhLJ(Cri)MLJ
(Criminal) 859.
15 crwp 1210.2021.odt
7. We have carefully considered the submissions
advanced by the learned counsel for the petitioner and
the learned APP for the respondents. With their able
assistance, we have perused the grounds taken in the
petition, annexures thereto and the case laws cited by
the respective parties.
8. It appears that in view of the offences registered
against the detenue and incamera statements of the two
witnesses, the detaining authority is convinced that the
petitioner is a dangerous person and the people residing
within the local jurisdiction of the concerned police
station and the residents residing in the adjoining
locality are facing serious hardship due to fear and
terror created by the detenue. Respondent no.2 was
subjectively satisfed that if the detenue's criminal
activities and dangerous activities are not prevented, the
petitioner is likely to indulge in the similar activities on
large scale, which would be prejudicial to the public
order.
9. We have carefully perused the grounds of the
detention. It apperas that the detenue has been
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detained on the ground that since 2018 he has been
indulged continuously in the commission of violent
activities which has created terror in the mind of the
residents of the area. There are two crimes bearing
crime no.303 of 2021 and 304 of 2021 indicating the
recent criminal activities of the detenue. In view of this
history, confdential inquiry was conducted regarding
his activities and, accordingly, two witnesses have come
forward to give the statements in the incamera. On
careful perusal of the statements, it apperas that
witness no.A was returning to home, the detenue
demanded money from him. Thus, the detenue has
shown him a knife and threatened him on the point of
knife, forcibly removed an amount of Rs.4,900/- from
the pocket of his shirt. Though, witness has raised hue
and cry, however, no one has come forward to help him
due to fear and terror of the detenue. So far as
incamera statement of witness 'B' is concerned, he was
drinking Tea, detenue has abused him in flthy language
and, thereafter, forcibly removed an amount of
Rs.6,000/- from his pocket of Shirt. Though witness
has cried for help, but due to fear and terror of the
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detenue, no one has come forward to help him. Even,
the shop keepers have closed their shops.
10. Even though crime No.303 of 2021 is considered
as a crime not relevant for passing the detention order,
however, crime no.304 of 2021 coupled with incamera
statements of the witnesses is suffcient to conclude
that detaining authority, after subjective satisfaction
has passed the impugned detention order.
11. Though crime no.304 of 2021 came to be quashed
by this Court by order dated 18.11.2021 in criminal
applicationno.2238 of 2021, however, the crime no.300
of 2021 registered with Begumpura Police Station and
and 304 of 2021 registered with the same police station
being the counter FIR's came to be quashed on the basis
of the settlement arrived at between the parties.
However, the fact remains that, there was a law and
order problem since both the groups fought at a public
place and disturbed the public tranquility. Even, the
police machinery was extensively used to maintain the
peace, law and order. Consequently, both the parties
were saddled with the costs. Though, FIR against each
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others came to be quashed on the basis of the
settlement arrived at between the parties. However, at
the time of passing of detention order, the said crime
no.304 of 2021 was registered against the detenue. The
petitioner/detenue cannot take advantage of the
subsequent event of quashing of the FIR on the basis of
the settlement.
12. In a case of Banka Sneha Shila Vs. State of
Telangana and others in Criminal Appeal No.733 of
2021, relied upon by the learned counsel for the
petitioner, in paragraph no.17 the Supreme Court has
made following observations :-
17. To tear these observations out of context would be
fraught with great danger when it comes to the liberty of a
citizen under Article 21 of the Constitution of India. The reason
for not adopting a narrow meaning of 'public order' in that case
was because of the expression "in the interests of" which
occurs to Article 19(2) to 19(4) and which is pressed into
service only when a law is challenged as being unconstitutional
for being violative of Article 19 of the Constitution. When a
person is preventively detained, it is Article 21 and 22 that are
attracted and not Article 19. Further, preventive detention must
fall within the four corners of Article 21 read with Article 22
and the statute in question. To therefore argue that a liberal
meaning must be given to the expression 'public order' in the
context of a preventive detention statute is wholly inapposite
and incorrect. On the contrary, considering that preventive
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detention is a necessary evil only to prevent public disorder, the
Court must ensure that the facts brought before it directly and
inevitably lead to a harm, danger or alarm or feeling of
insecurity among the general public or any section thereof at
large.
13. In a case of Devanand @ Deva Radhakrishna
Mishra Vs. State of Maharashtra and another in
criminal writ petition no.297 of 2008, relied upon by the
leraned counsel for the petitioner, the Division Bench of
this Court in paragraph no.21 of the judgment has
made following observations :-
"21. In the judgment of Biru Mahato (supra), the Hon'ble Apex
Court has held that in preventive detention matters affidvait
filed by the deponent describing himself as District
Magtistrate could not have been accepted as he was not the
District Magistrate whose subjective satisfaction was in issue.
Mere occupation of the said office is not sufficient and
successor in office cannot file his affidavit to substantiate such
satisfaction of earlier occupant. Before the Hon'ble Apex
Court subjective satisfaction of holder in office was put in
issue. Even before us the said satisfaction has been put in
issue by contending that the compelling reason to order
detention of petitioner or imminent possibility of his release
on bail has not been looked into by respondent no.2. The
other ground on which such subjective satisfaction is assailed
is in relation to incamera statements and verification thereof.
Though, it has been argued before us that the affidvit in reply
has been filed on behalf of the respondent no.2, we find that
there is no such authority filed on record or mentioned in the
affidavit sworn by Shri R.J. Rathod, Superintendent in the
office of the Collector, Yavatmal."
14. In a case of Nasibullah Khan Vs. M.N Singh and
others reported in (2002) BomLR 119, relied upon by
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the learned counsel for the petitioner, in paragraph
nos.8 and 10 this Court has made following
observations :-
"8. The next submission of Ms. Kamat is that after all it is
subjective satisfaction of the detaining authority and,
therefore, this court should not interfere in the order of
detention passed by the detaining authority. In support of
this contention she read out the affidavit in reply filed by
the detaining authority on 9th October, 2001. It is true that
the exercise of powers of detention depends on the
subjective satisfaction of the detaining authority, but that
does not mean that judicial scrutiny of such subjective
satisfaction is shut-out. Such contention has been turned
down in para 13 of the Judgment of the Apex Court in the
case of Khudiram Das v. The State of West Bengal and Ors.
In the absence of any material pointed out by the detaining
authority either in the grounds of detention or in the reply
affidavit to conclude that the detenu is likely to be released
from custody in the near future, it cannot be said that the
conditions laid down by the Supreme Court in Chelawat's
case for issuing detention order in case of a person in
custody are satisfied. This is a case where the basis for
subjective satisfaction is itself absent and, therefore, there
cannot be question of the detaining authority arriving at any
subjective satisfaction, simply because the detaining
authority says so.
10. In the aforesaid circumstances, in our opinion, there was no
material for the detaining authority to arrive at the
satisfaction for passing the impugned order under Section
3(1) of the MPDA Act. We are, therefore, of the view that
the impugned order has been passed against the law laid
down by the Apex Court in Chelawat's case (supra) and,
therefore, cannot be sustained."
15. In a case of Hrishi @ Sarjerao Baban Takele Vs.
The District Magistrate, Sangli and others in
Criminal Writ Petition no.388 of 2017, relied upon by the
learned counsel for the petitioner, the Division Bench of
this Court has referred the view expressed by the
21 crwp 1210.2021.odt
Supreme Court in the case of Rushikesh Tanaji Bhoite
Vs. State of Maharashtra and ors. reported in 2012
Cri.L.J. 1334. In paragraph nos.8 to 10 this Court has
made following observations :-
"8. Mr. Tripathi pointed out that in the case of Rushikesh Bhoite
(Supra), in paragraphs 9 and 10 of the said decision, it is
observed as under :-
9. In a case where Detenu is released on bail and is
enjoying his freedom under the order of the court at the
time of passing the order of detention, then such order of
bail, in our opinion, must be placed before the detaining
authority to enable him to reach at the proper
satisfaction.
10. In the present case, since the order of bail dated August
15, 2010 was neither placed before the detaining
authority at the time of passing the order of detention nor
the detaining authority was aware of the order of bail, in
our view, the detention order is rendered invalid. We
cannot attempt to assess in what manner and to what
extent consideration of the order granting bail to the
detenu would have effected the satisfaction of the
detaining authority but suffice it to say that non-placing
and non-consideration of the material as vital as the bail
order has vitiated the subjective decision of the detaining
authority. (emphasis supplied).
9. Mr. Tripathi pointed out that after making above observations
in paragraphs 8, 9 and 10 of the decision in the case of
Rushikesh Bhoite (Supra), the Supreme Court observed that the
order of bail was neither placed before the Detaining Authority
at the time of passing the detention order nor the Detaining
Authority was aware of the order of bail. Hence, detention
order is rendered invalid. It was further observed that non-
placing and non-consideration of the material as vital as the
bail order has vitiated the subjective satisfaction of the
Detaining Authority. In the present case also, nowhere in the
detention order or in the grounds of detention, the Detaining
Authority has shown its awareness that bail was granted to the
Detenu in C.R.No.36 of 2016. It is also an admitted fact that
detailed order granting anticipatory bail to the Detenu running
into six pages was not placed before the Detaining Authority
nor a copy thereof was furnished to the Detenu.
10. In this view of the matter, the decision in the case of Rushikesh
Bhoite (Supra) would squarely apply to the present case, hence,
we have no option but to set aside the order of detention.
22 crwp 1210.2021.odt
Accordingly, the detention order is quashed and set aside. The
Detenu be set at liberty, if not wanted in any other case. Rule is
made absolute in the above terms."
16. In a case Viaya Raju Gupta Vs. R.H.Mendonca
and others reported in 2001 (1) Mh.L.J. 449, relied
upon by the learned counsel for the petitioner, in
paragraph no.6 the Division Bench of this Court has
made following observations :-
"6. There remains no doubt in the light of the law laid
down by the Apex Court that in-camera statement of
person/witness can be utilised by the detaining
authority for the purpose of arriving at subjective
satisfaction for passing the order of detention.
However, the Apex Court made it clear that the facts
stated in the materials relied upon should be true
and have a reasonable nexus with the purpose for
which the order is passed. Necessary corollary,
therefore is that the detaining authority must be
satisfied about the truthfulness of the statements
made in the in-camera statements. Testing it from
this touch stone, we find that neither in the detention
order nor in the grounds of detention, the detaining
authority has stated anything that he was satisfied
about the truthfulness of the statements made in in-
camera statements. In the present case the petitioner
has set up specific case that incamera statements
were false and fabricated after the detenu was
released on bail. The detaining authority in his first
affidavit filed on 13-4-2000 has only denied that
false and fabricated statements were recorded after
the detenu was released on 3-7-1999. While denying
that the documents were fabricated, the detaining
authority in his aforesaid affidavit has further stated
that the incamera statements were verified by the
higher grade police officer of the rank of A.C.P. As a
matter of fact, in two subsequent affidavits, this
stand has been reiterated and further statement has
been made that he was subjectively satisfied that the
contents of the in-camera statements were true and
23 crwp 1210.2021.odt
genuine since it was verified by the Assistant
Commissioner of Police. The English translation of
the verification made by the Assistant
Commissioner of Police below the in-camera
statements reads, "my statement was translated to
me in Hindi which is in accordance with what I
stated." This means that the Assistant Commissioner
of Police has only verified that the statement made
by the witness was recorded as actually made by
him. Therefore on the basis of mere verification,
without there being something more by way of
contemporaneous document or material more over
when no such statement is made in the grounds of
detention that the statements made in the in-camera
statement were believed to be true, it is very
difficult to hold that the detaining authority was in
fact subjectively satisfied that the assertions made in
in-camera statements were true. The detaining
authority has to apply his mind about the
truthfulness of the assertions made in in-camera
statements which in the facts of the present case
seems to have not been done which in our opinion
vitiates the detention order."
17. In the instant case, the detaining authority has
recorded the compelling reasons to order the detention
of the detenue. On careful perusal of the record and
after considering the affdavit-in-reply fled by the
respondent no.2, it appears that before passing the
impugned order of detention, all procedural formalities
have been scrupulously followed and after conscious
application of mind, the respondent no.2 has arrived at
a subjective satisfaction and then the order of detention
24 crwp 1210.2021.odt
has been passed. We fnd no substance in this writ
petition. Hence, we proceed to pass the following order.
ORDER
i. Criminal writ petition is hereby dismissed.
ii. Criminal writ petition accordingly disposed off.
( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. )
...
aaa/-
