Bombay High Court

Sachin Parshuram Mane vs The Commissoner Of Police, Pune ... on 15 June, 2022

Bench: S.S. Shinde, Milind N. Jadhav

                                                                               137.wp.3174.21.doc

S.S.Kilaje                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
                           CRIMINAL WRIT PETITION NO. 3174 OF 2021

             Sachin Parshuram Mane
             Age 22 yrs. R/o. 425/26,
             Industrial Estate, Swargate, Pune
             (At present Yerwada Central Prison, Pune)                  .. Petitioner
                         Versus
             1. The Commissioner of Police Pune City
             2. The State of Maharasthra
                (Through Addl. Chief Secretary to
                Government of Maharashtra Mantralya,
                Home Department, Mantralaya, Mumbai
             3. The Superintendent, Yerwada Central Prison
                 Pune                                                   .. Respondents
                                          ....................
              Ms. Jayshree Tripathi for the Petitioner
              Ms. S.D.Shinde, APP for Respondent - State
                                        ...................
                                    CORAM                        : S.S.SHINDE &
                                                                   MILIND N. JADHAV, JJ.
                                    RESERVED ON                  : JUNE 09, 2022.
                                    PRONOUNCED ON                : JUNE 15, 2022.

             JUDGMENT (PER : MILIND N. JADHAV, J.)

1. This Petition takes exception to the order of Detention

bearing No. D. O. No. PCB/DET/1480/2021 dated 30.06.2021 issued

under Section 3 of the Maharashtra Prevention of Dangerous Activities

of Slumlords, Bootleggers, Drug-offenders, Dangerous persons and

Video Pirates Act, 1981 (for short "M.P. D.A. Act") by the Respondent

No.1.

2. Learned counsel Ms. Tripathi has restricted her

submissions to the contentions raised in grounds (b), (c), (d) of the

Petition. It is argued that there is a gross delay of about 5 months in

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passing the impugned order of detention from the last date of the last

incident on 27.01.2021. The delay in passing the impugned order on

30.06.2021 is unexplained. There is no promptitude on the part of

the authorities.

2.1. Learned counsel has in support of her proposition referred

to an relied upon the following 4 judgments for the unexplained and

undue delay of 5 months in passing the impugned order of detention :

1. Pradeep Nilkant Paturakar Vs. S. Ramamurthi & Ors.1

2. Sanjeev @ Sanjay @ T.N.Upade Vs. Commissioner of Police, Solapur 2

3. Niyazuddin @ Sonu Ansari Vs. State of Maharashtra3

4. Mohsin Ahmed Vs. State of Maharashtra4

2.2. Learned counsel has further argued that the requirement

of law as envisaged under Section 3(3) of the M.P.D.A. Act has not

been complied with in the present case. It is submitted that the

approval of the order of detention is not done forthwith as per

requirement of law. The representation dated 26.08.2021 of the

Petitioner was sent to the Superintendent, Yerwada Central Prison,

Pune for forwarding it to the State Government for expeditious

consideration; there is no communication received so far from the

authorities till date and thus there is an admitted delay.

1 1993 Supp (2) SCC 61 2 Cri. W.P.No 3035 of 2021 3 2013 ALL MR (Cri) 3870 4 2014 ALL MR (Cri) 2409

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2.3. Learned counsel has referred to an relied upon the

following judgments in support of non-compliance of the requirement

of law under Section 3(3) of the M.P.D.A. Act in the present case :

(i) Hetchin Haokip Vs. State of Manipur & Ors.5

(ii) Sanjay s/o. Ramuji Phatode Vs. Commissioner of Police, Nagpur and Ors.6

(iii) Dharani Raja Padyachi vs. State of Maharashtra & Ors.7

(iv) Mahesh Gopinath Pawar Vs. Commissioner of Police, Pimpri Chinchwad & Ors.8

2.4. Petitioner has also pleaded that on reading of the

statements of the witnesses, it prima-facie appears that the police

authorities have given assurances to them to give those statements and

as such the same are not independent and have been recorded on

receiving false assurances.

3. PER CONTRA, learned APP Ms. S.D.Shinde has drawn

our attention to the Affidavit-in-Reply dated 06.10.2021 filed by

Shirish Nagorao Mohod., Deputy Secretary, Government of

Maharashtra, Home Department (Special), Mantralaya, dated 12 th

October, 2021 filed by Commissioner of Police, Pune City, Pune and

dated 5th October, 2021 filed by the Superintendent, Yerwada Central

Prison, Pune and contended that the detention order has been passed

5 (2018)9 SCC 562

7 2019 ALL MR (Cri) 3504

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in accordance with law. It is submitted that the Petitioner was a

dangerous person and the authority was satisfied on the basis of

material available which included in-camera statements of witnesses

and only on going through the same, there was subjective satisfaction

of the competent authority. It is further submitted that there is no

illegality committed in granting assurance of safety and secrecy to the

witnesses whose statements have been recorded as it became

necessary for the police to assure the witnesses about their safety. It is

also denied that the order of detention is passed only taking into

consideration solitary criminal case vide C.R.No. 13/2021 and two in-

camera statements of witnesses and that there are 8 offences

registered against the Petitioner in Pune City and the criminal

activities of the detenu are found to be prejudical to the maintenance

of law and order. Therefore the Petition may be rejected.

4. We have given careful consideration to the rival

submissions and with the able assistance of the learned counsel for the

Petitioner and the learned APP perused the pleadings and considered

the annexures and relies filed by the Respondents.

5. It is seen that in the present case, the detaining authority

has recorded two in-camera statements of 2 witnesses on 12.05.2021

and 19.05.2021 of the incidents which occurred on 10.01.2021 and

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sometime in the 3rd week of January 2021; that there is admittedly

delay of 5 months in passing the impugned order after the date of the

last date of incident i.e. on 27.01.2021. It is seen that the authority

submitted the proposal on 12.06.2021 for detention and the Detention

order was passed on 30.06.2021. It is merely pleaded in paragraph

No. 9 of the Affidavit-in-Reply dated 12 th October, 2021 that the

proposal went through the proper channel i.e. ACP, DCP, Addl. C.P.,

Joint C.P. and after proper application of mind the detention order was

passed. The delay between 12.06.2021 and 30.06.2021 is sought to

be explained in one sentence without giving any effective timeline and

reasons therefor. What matter is the explanation offered by the

Respondent authorities for such delay. It is explained that the

detention order was passed on 30.06.2021 and there was heavy Palkhi

bandobast on 1st July, 2nd July, 3rd July and 4th July being holiday, the

report could not be submitted to the Additional Chief Secretary

(Home), Government of Maharashtra.

6. 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 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

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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 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

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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 2 nd 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 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 specific 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."

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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 given why

there was gap in recording statements of witnesses 'A' and 'B' from the

date of alleged incident.

7. In the present case, the justification given for the delay in

submitting the report to the State Government is contrary to the

provisions of Section 3(4) of the M.P.D.A. Act. It is mandated that the

Act provides that when a detention order is made, it shall be

"forthwith" reported to the State Government alongwith the ground on

which the order is made and any other relevant facts.

8. Next we come to the in-camera statements recorded by

the two witnesses. Perusal of the two statements clearly reveal that

both the witnesses have been assumed complete secrecy. In the

statement of one witness "B", the date of the incident is not known

and is approximately stated to be sometime in the third week of

January, 2021.