Nazeem Abdul Rahim Salar vs The Commissioner Of Police And Anr
2022 Latest Caselaw 13122 Bom

 DAE                            1                          WP-2092-2022.doc


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

          CRIMINAL WRIT PETITION NO. 2092 OF 2022

Nazeem Abdul Rahim Salar                           ...Petitioner
      Versus
1. The Commissioner of Police, Solapur
2. The State of Maharashtra
3. The Superintendent,
   Yerwada Central Prison, Pune                    ...Respondents

                                    ....
Ms. Jayashree Tripathi, Advocate for the Petitioner.
Mrs. M. H. Mhatre, APP for the Respondent - State.

                                        ....

                         CORAM :         A. S. GADKARI AND
                                         PRAKASH D. NAIK, JJ.
             RESERVED ON            :    7th DECEMBER, 2022
          PRONOUNCED ON             :    16th DECEMBER, 2022

JUDGMENT (PER PRAKASH D. NAIK, J.) :

1. Petitioner has invoked Writ Jurisdiction of this Court

under Article 226 of the Constitution of India challenging the Order

of Detention dated 28th February, 2022 passed by Commissioner of

Police, Solapur under the "Maharashtra Prevention of Dangerous

Activities of Slumlord, Bootleggers, Drug Offenders, Dangerous

Persons, Video Pirates, Sand Smugglers and persons engaged in

Black-Marketing of Essential Commodities Act, 1981" (hereinafter

referred to M.P.D.A. Act). The impugned Order has been issued with

a view to prevent the Petitioner from acting in any manner DAE 2 WP-2092-2022.doc

prejudicial to the maintenance of public Order. Along with Order of

detention, the Petitioner was also served upon the grounds of

detention on the basis of which the impugned Order was issued by

the Detaining Authority.

2. The Order of detention is based on C.R. No.3 of 2022

registered with MIDC Police Station, Solapur City for offences

punishable under Sections 326, 323, 504, 506 read with 34 of the

Indian Penal Code (for short 'IPC') and statements of two witnesses

recorded in-camera. Witness 'A' has referred to the incident which

had occurred in fourth week of December, 2021 and witness 'B' has

referred to the incident which had occurred in first week of January,

2022. The Detaining Authority has arrived at the subjective

satisfaction that, the criminal activities of the Petitioner shows that,

he had proved himself as a 'Dangerous Person' within the meaning of

Section 2(b-1) of the M.P.D.A. Act, 1981.

3. Learned Advocate for the Petitioner has urged following

grounds assailing the impugned Order of detention.

(i) The Medical Certificate of the injured in C.R. No.3 of 2022

registered with MIDC Police Station, Solapur City is not placed

before the Detaining Authority and not supplied to the Petitioner.

(ii) The Detaining Authority has considered old and stale cases DAE 3 WP-2092-2022.doc

which had resulted in acquittal and copies of Judgment of acquittal

are not supplied to the Petitioner.

4. The first ground relating to non-placement of Medical

Certificate before the Detaining Authority has been raised as ground

(f) in the Petition. The learned Advocate for the Petitioner submitted

in paragraph 5 (1) of the grounds of detention, the Detaining

Authority has stated that, the complainant is presently at Civil

Hospital, Solapur for treatment and that, on 18 th January, 2022 the

Investigating Officer gave request letter to Medical Officer of Shri.

Chatrapati Shivaji Maharaj Sarvopachar Rugnalay, Solapur about

getting the Medical Certificate. The medical/injury report is not

placed before the Detaining Authority and the copy is not furnished

to the Petitioner. It is vital and important documents. The Petitioner

is deprived of making effective representation and his rights

guaranteed under Article 22(5) of the Constitution of India has been

affected.

5. In support of submissions, the learned Advocate for the

Petitioner has relied upon the following decisions:-

(a) Kamla Kanhaiyalal Khushalani Vs. State of Maharashtra and Anr.1

(b) Union of India Vs. Ranu Bhandari2

(c) V. C. Mohan Vs. Union of India and Others3.

1 AIR 1981 SC 814 2 (2008) 17 SCC 348 3 (2002) 3 SCC 451 DAE 4 WP-2092-2022.doc

6. The second ground urged by Petitioner is that, old, stale

and acquitted cases have been referred in paragraph 4 of the grounds

of detention. The acquittal Orders are not supplied to the Petitioner.

The said documents have influenced the mind of detaining Authority

while issuing Order of detention. This issue has been raised by

Petitioner in ground No.6(g) of the Petition. The learned Advocate

for the Petitioner submitted that, the Detaining Authority has

referred to table of cases at paragraph 4 of the grounds of detention

stating previous criminal history of the Petitioner. The Detaining

Authority has stated that, offences at serial No.1 to 4 have resulted in

acquittal. It is also stated that, the Petitioner has been acquitted

from the offences as shown in paragraph 4 at serial No.1 to 4 and

from the judgment of these offences, it is clear that, seriously injured

witnesses have not given supportable evidence for prosecution.

During the hearing they have agreed that, they have made out of

Court settlement. Hence, declaring them as a hostile, the Court

acquitted the Petitioner from the offences as mentioned above.

Possibility can't be denied that, witnesses may have done like this

only because of his terror. It is submitted that, no judgments of

acquittal were furnished to the Petitioner on which reliance is placed

by the Detaining Authority. It also shows that, old cases were

considered by Detaining Authority while issuing the impugned Order DAE 5 WP-2092-2022.doc

of detention. Non-supplying of documents has violated Petitioner's

right under Article 22(5) of the Constitution of India.

7. Learned APP submitted that, the Medico Legal

Certificate was issued on 23 rd March, 2022, which is after the

issuance of detention Order and the question of placing such

document before the Detaining Authority does not arise. Both the

grounds urged by Petitioner are devoid of merits. She relied upon

the affidavit-in-reply filed by Detaining Authority. While dealing

with the ground 6(f) of the Petition, the Detaining Authority in

paragraph 13 of affidavit in reply has stated that, it is denied that,

the medical document/injury report is an important and vital

document in CR No.3 of 2022. It is also denied that, non-furnishing

the said document amounts to non-communication of grounds of

detention and that the Petitioner is deprived of making effective

representation. The Detaining Authority has relied upon the

material, copies of which were already furnished to the detenu at the

time of execution of the Order of Detention. The Medico Legal

Certificate is not a part of relied upon documents and the said

document was not produced before the Detaining Authority and the

copy of the same has not been furnished to the detenu. The second

ground urged by the Petitioner has been replied by the Detaining

Authority, vide paragraph 14 of the affidavit-in-reply wherein it is DAE 6 WP-2092-2022.doc

stated that, the right of the detenu under Article 22(5) of the

Constitution of India is not violated. Whatsoever document/material

were considered and relied upon by Detaining Authority, while

forming it subjective satisfaction, all such documents were furnished

to the detenu in order to make effective representation before the

Authority. In the beginning of paragraph 1 which is an introductory

to the grounds of detention, the Detaining Authority has specifically

mentioned that, the grounds are mentioned in paragraph 5, on

which the Detention Order has been made by Detaining Authority.

The Detaining Authority has segregated the material on which the

subjective satisfaction is based on the referred documents. It was

not mandatory to the Detaining Authority to supply the documents

which were referred while completing narration of facts and not

relied upon to form the subjective satisfaction that, the detenu is a

'Dangerous Person' and due to his prejudicial activities the Public

Order has been disturbed in the locality.

8. Learned APP has relied upon the decision of the

Supreme Court in the case of Mst. L. M. S. Ummu Saleema Vs. B. B.

Gujaral and Another4.

9. The first ground urged by Petitioner/detenu is that, the

Medico Legal Certificate relating to C.R. No.3 of 2022 is not placed

4 AIR 1981 SC 1191 DAE 7 WP-2092-2022.doc

before the Detaining Authority and not supplied to the Petitioner. In

the ground of detention it is stated that, the Investigating Officer has

given request letter to the Medical Officer about getting of certificate

of injured/complainant. Learned APP has brought to our notice the

fact that, the Medico Legal Certificate was issued on 23 rd March,

2022 i.e. after the issuance of Order of detention. The question of

placement of such document before the Detaining Authority

therefore does not arise at all. Even otherwise, in the facts of this

case we do not find any merit in the submission of learned counsel

for the Petitioner that non-placement of said document has violated

Petitioner's right under Article 22(5) of Constitution of India.

The second ground is based on the averment reflected in

paragraph 4 of the grounds of detention. On perusal of the ground of

detention it is clear that, in paragraph 5 of the grounds that,

Detaining Authority has stated that, this detention Order is based on

the offence and in-camera statements. The offence was referred in

ground 5.1 whereas in-camera statements were referred to in para

5.2 and 5.3 of the grounds of detention. The judgment of acquittal

referred to in para 4 does not form part of grounds of detention on

the basis of which the Detention Order has been issued. In paragraph

4 itself it is mentioned that, in the past several offences referred to

therein were registered against the Petitioner. The impugned Order DAE 8 WP-2092-2022.doc

of detention is based on C.R. No. 3 of 2022 registered with MIDC

Police Station, Solapur City and two in-camera statements. Thus, the

submission of the learned counsel for the Petitioner that, the Order

of acquittal should have been supplied to the Petitioner and that, it

has affected Petitioner's right under Article 22(5) of the Constitution

of India cannot be accepted. The law relating to placement of

document before the Detaining Authority and supply of relied upon

document is well settled. The decisions relied upon by the learned

Advocate for the Petitioner were based on the factual matrix of the

respective cases.

In view of the above, we do not find any reason to set

aside the impugned Order of detention. The Petition therefore

deserves to be dismissed.

ORDER

(i) Criminal Writ Petition No.2092 of 2022 is dismissed.

                         (ii)    Rule is discharged.



                         (PRAKASH D. NAIK, J.)                            (A. S. GADKARI, J.)




             Digitally signed
             by
DNYANESHWAR DNYANESHWAR
ASHOK ETHAPE ASHOK ETHAPE
             Date: 2022.12.16
             11:34:04 +0530