Mohsin Anwar Khan @ Shaikh vs The Commissioner Of Police And Ors
2023 Latest Caselaw 8903 Bom

2023:BHC-AS:24867-DB




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 varsha                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL WRIT PETITION(STAMP) NO. 7365 OF 2023


                 Mohsin Anwar Khan @ Shaikh
                 R/o. Jijamata Nagar, Navi Khadki,
                 Pune.                                          ... Petitioner

                              vs.

                 1. Commissioner of Police, Pune.
                       Agarkar Nagar, Pune City.
                 2. The State of Maharashtra
                       Yerwada Police Station, Pune
                 3. The Superintendent of Jail
                       Nashik Central Prison, Nashik            ... Respondents


                 Mr Ibrahim Shaikh a/w. Mr Ashraf Ali Shaikh, for the Petitioner.

                 Mrs. S.D. Shinde, A.P.P for the State.

                                           CORAM : REVATI MOHITE DERE &
                                                        GAURI GODSE, JJ.

RESERVED ON : 18th AUGUST, 2023 PRONOUNCED ON : 30th AUGUST, 2023

JUDGMENT (PER: GAURI GODSE, J.) :-

1. This petition is filed to challenge the order of detention

dated 24th February 2023, passed by respondent No.1 - The 2 / 19 904-wpst-7365-23.docx

Commissioner of Police, Pune, in the exercise of power

conferred under sub-section (2) of section 3 of the Maharashtra

Prevention of Dangerous Activities of Slumlords, Bootleggers,

Drug Offenders, Dangerous Persons, Video Pirates, Sand

Smugglers and Persons engaged in Black-marketing Essential

Commodities Act, 1981 ('MPDA Act') for detaining the

petitioner.

2. Perusal of the order of detention indicates that the

detaining authority has relied upon C.R No. 516 of 2022, dated

4th November 2022, registered against the petitioner for the

offences punishable under sections 307, 504, 506 of the Indian

Penal Code and under sections 37(1)(3)/135 of Maharashtra

Police Act and under section 4(25) of the Arms Act. The

allegations against the petitioner in the said CR are that the

petitioner had abused and threatened the complainant and tried

to assault the complainant by using weapons. In the said CR, the

allegation against the petitioner is that when the complainant was

returning home, he saw the petitioner with an axe trying to

assault a local resident and when the complainant questioned the 3 / 19 904-wpst-7365-23.docx

petitioner as to why he was abusing the local resident, the

petitioner threatened him. It is further alleged that on the same

day again, the petitioner approached the complainant armed

with an axe and started abusing the complainant and tried to

assault the complainant and thus the complainant, out of fear

started shouting. Hence, the petitioner brandished an axe on the

complainant's head which he defended, however, was hurt in the

said attack. It is further stated that everyone in the locality tried

to prevent the petitioner, however, he threatened everyone by

waiving an axe in the air and thus, out of fear, everyone ran

away. It is further the case of the complainant that the parents of

the complainant, who had come to rescue the complainant also

ran away to save their life. The detaining authority has further

recorded that during the investigation of the said CR, statements

of the witnesses were recorded, spot panchanama, memorandum

of panchanama was also made and the petitioner was arrested on

4th November 2022 and was remanded to police custody and

further to magistrate custody. The order of detention further

indicates that the petitioner was granted bail on 7 th February

2023. Charge-sheet in the said case was submitted on 31 st 4 / 19 904-wpst-7365-23.docx

January 2023 and the same is pending trial.

3. The detaining authority further relies upon two in-camera

statements recorded on 10th January 2023 and 14th January 2023,

referring to the incidents of 5th October 2022 and 23rd October

2022, respectively. The witnesses of the in-camera statement

made allegations against the petitioner that he brandished iron

koyta on the front glass of his vehicle and broke it and thereafter

assaulted the complainant and forcibly extorted money from the

complainant. Similar allegations are made by the second witness

of the in-camera statement. It is alleged by the witness of the

second in-camera statement that the petitioner had assaulted the

witness by raising a sword at him and threatened him. Thus,

detaining authority by relying on the aforesaid CR as well as the

in-camera statements recorded subjective satisfaction that since

the petitioner is a dangerous person as defined under the MPDA

Act and the petitioner's activities are prejudicial to the

maintenance of the public order. The order of detention further

records that since the petitioner is released on bail, considering

the inclinations reflected in the offences committed by the 5 / 19 904-wpst-7365-23.docx

petitioner, and the incidents recorded in the in-camera

statements, his activities are prejudicial to the maintenance of

public order in future, and thus, it is necessary to detain the

petitioner.

4. The learned counsel for the petitioner has raised various

grounds to challenge the order of detention. However, has

pressed into service, the grounds raised in clauses (E), (Z) and

(BB) of paragraph 14 of the petition, which reads as under:

"E. The Petitioner further submits that, the eye witnesses of the above alleged offence namely Umar @ Pappu Riyaz Khan & Shahrukh Firoz Khan are themselves culprits as they have been constantly abusing, harassing and assaulting the mother of the Petitioner as a result of which the mother of the Petitioner had time and again filed multiple NC against them and their entire family for offence punishable under sections 323, 504, 506, 420, etc. This shows that the said witnesses were already having grudge and enmity against the Petitioner and his family and therefore this false and frivolous case is registered against the 6 / 19 904-wpst-7365-23.docx

innocent Petitioner merely to harass him and his family. (Hereto marked and annexed the copies of the NC's lodged by the mother of the Petitioner against the witnesses in the above matter as 'Exhibit-B-Colly').

Z. The statements of the in-camera witnesses cannot be relied upon, since the alleged incidents are having a huge delay being dated back to 4 months, 19 days & 4 months, 1 day respectfully, of issuing the order of detention against the Petitioner. Moreover, the period between recording the statements and the date of detention order has a huge unexplained gap.

BB. The activities of the Petitioner are not prejudicial to the maintenance of public order since all the offences mentioned in the detention order are allegedly committed against independent individuals and not public at large, hence the said claim does not fulfill the requirement of Sec. 2(a)(iv) of the said Act."

5. The learned counsel for the petitioner submitted that the

alleged incident relied upon by the detaining authority is prior to 7 / 19 904-wpst-7365-23.docx

more than four months of the detention order and the in-camera

statements cannot be relied upon as the period between the

recording of the statements and the date of the detention order

has an unexplained gap. Learned counsel further submitted that

the allegations against the petitioner do not amount to any

prejudicial activities having threat to maintenance of public order

as the allegations against the petitioner are against individuals

and not towards the public at large. He further submitted that

eye witnesses with respect to the allegations made against the

petitioner in the said CR are themselves culprits, and they have

assaulted the mother of the petitioner, and thus multiple

complaints are filed against them and their entire family. Learned

counsel, thus, submitted that the witnesses in the said CR were

already having a grudge against the petitioner and their family

and hence filed a complaint against the petitioner.

6. Learned counsel, therefore, submitted that the order of

detention is vitiated on the ground of delay and that the

allegations against the petitioner are individual in nature, which

does not create any threat to the public at large. He therefore 8 / 19 904-wpst-7365-23.docx

submitted that the continued detention of the petitioner is illegal

and the order of detention be quashed and set aside, and the

petitioner be released forthwith. In support of his submissions,

the learned counsel relied upon the decision of this Court in the

case of Rashid Sahukat Husain Sayyed@ Jagga v/s the State of

Maharashtra and others1

7. Learned APP supports the order of detention by relying

upon the affidavit dated 16th May 2023 of Retesh Kumaarr,

Commissioner of Police, Pune City, affidavit dated 14 th June

2023 of Anil Eknath Kulkarni, Government of Maharashtra,

Home Department(Special), Mantralaya, Mumbai as well as the

additional affidavit dated 31st July 2023 of Retesh Kumaarr,

Commissioner of Police, Pune City. By relying upon the aforesaid

affidavits, the learned APP submitted that there is no delay in the

issuance of the detention order as contended by the petitioner.

She submitted that after the in-camera statements were recorded

on 10th January 2023 and 14th January 2023, Sponsoring

Authority submitted the proposal on 20th January 2023 to the

Assistant Commissioner of Police, Yerwada Police Station, for 1 2018(2) AIR Bom. R(Cri) 300 9 / 19 904-wpst-7365-23.docx

verification of the in-camera statements. She relied upon

paragraph no. 7 of the additional affidavit dated 31 st July 2023

filed on behalf of the Commissioner of Police, Pune City.

Learned APP, thus, submitted that all the steps taken are

explained in the said affidavit. She submitted that due to G-20

Summit to be held on 15th January 2023 to 17th January 2023 in

Pune, preparation of bandobast started on 12 th January 2023 and

ended on 19th January 2023. There were public holidays on 21 st

January 2023 and 22nd January 2023, and thus on 23rd January

2023, the Assistant Commissioner of Police, Yerwada Division,

Pune, personally visited the spots mentioned in the in-camera

statements and thereafter verified the genuineness and

truthfulness of the statements of in-camera witnesses on 24 th

January 2023 and forwarded the copy of proposal along with the

compilation of documents to the Deputy Commissioner of

Police, Zone IV, Pune. Thereafter, due to the Republic Day

celebration on 26th January 2023, there was heavy bandobast.

Thus, the Deputy Commissioner of Police went through all the

papers and, after perusal and scrutiny, endorsed the proposal on

27th January 2023. Thereafter, the proposal was forwarded to the 10 / 19 904-wpst-7365-23.docx

Additional Commissioner of Police, East Region, on the same

day, who endorsed the same after careful consideration on 31 st

January 2023 and forwarded the same to the Senior Inspector of

Police(Preventive Crime Branch) on 1st February 2023 as there

was a holiday on 29th January 2023 being Sunday.

8. Learned APP thus submitted that 5th February 2023 was a

holiday, and other two proposals were also pending for scrutiny,

the Senior Inspector of Police(Preventive Crime Branch), after

scrutinising the proposal, submitted a report to the Assistant

Commissioner of Police Crime-I on 6th February 2023. As the

ACP Crime-I was busy in the investigation of the two MCOC

cases, and in bandobast, the endorsement was made by the

Assistant Commissioner of Police on 10 th February 2023.

Thereafter, the file was placed before the Deputy Commissioner

of Police on 11th February 2023; there was a holiday on 12th

February 2023 being a Sunday. The Deputy Commissioner of

Police Crime scrutinised and considered the proposal and

endorsed on the proposal on 15th February 2023, and thereafter

on the same day proposal was placed before the Additional 11 / 19 904-wpst-7365-23.docx

Commissioner of Police, Crime, who endorsed it on 18 th

February 2023. The said affidavit further indicates that due to

Shiv jayanti bandobast, Additional Commissioner of Police,

Crime was busy in bandobast and hence proposal, along with the

documents were forwarded to the Joint Commissioner of Police,

and he made his endorsement on 21 st February 2023 and finally

entire file was placed before the detaining authority on 22 nd

February 2023. Thus, the detaining authority, after perusing and

scrutinising the entire record, reached to subjective satisfaction

and passed an order of detention on 24 th February 2023. Learned

APP, thus submitted that there is no delay in issuance of the order

of detention.

9. With respect to the other two grounds of challenge raised

by the learned counsel for the petitioner are concerned, learned

APP submitted that the allegations against the petitioner are of

extortion. Incidents narrated by the witnesses specifically

recorded in the statements show that the petitioner has created

terror and fear amongst the public. She therefore submitted that

there is no substance in the submission made on behalf of the 12 / 19 904-wpst-7365-23.docx

petitioner that the allegations against the petitioner are individual

in nature and are not against the public at large. With respect to

the ground of challenge as raised in clause (E) is concerned, the

learned APP submitted that the said ground pertains to the merits

of the CR registered against the petitioner, and hence, the same

cannot be considered as a ground of challenge to the order of

detention. Learned APP, thus, supported the order of detention

and submitted that there is no substance in the grounds raised by

the petitioner. In support of the submissions, learned APP relied

upon the decision of this Court in the case of Nagnarayan Saryu

Singh Vs. A. N. Roy & Ors.2

10. We have considered the submissions made by both parties.

We have perused the papers. A perusal of the detention order

reveals that the CR registered against the petitioner and two in-

cameras statements are relied upon by the detaining authority for

passing the detention order. For considering the ground raised by

the learned counsel for the petitioner that there is a delay in the

issuance of the detention order, it is necessary to note the

following dates:

2 2006 ALL MR (Cri) 2147
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                                                   904-wpst-7365-23.docx

     5th October 2022        Dates of incidents and
      23rd October 2022:      referred to in the in-
                              camera statements


     4th November 2022:      CR No. 516/2022 is registered
                              against the petitioner for the
                              offences punishable under sections
                              307, 505, and 506 of IPC, sections
                              37(1)(3)/135 of Maharashtra Police
                              Act and under section 4(25) of the
                              Arms Act. On the same day, the
                              petitioner was arrested.


     10th January 2023    In-camera statements
             th
      and 14 January 2023: were recorded.



     20th January 2023 :    Proposal was submitted by
                             the sponsoring authority.


     7th February 2023 :     The petitioner was
                              released on regular bail
                              with reference to the
                              aforesaid CR.


     24th February 2023:     Order of detention was
                              passed.

11. Perusal of the aforesaid dates and events show that the in-

camera statements were recorded when the petitioner was in

custody. The incidents referred to in the in-camera statements are 14 / 19 904-wpst-7365-23.docx

prior to the date of the registration of the aforesaid CR and the

date of arrest of the petitioner. A perusal of the dates and events

referred to in paragraph 7 of the additional affidavit dated 31 st

July 2023 filed by the Commissioner of Police, Pune City,

explains in detail the steps taken after the Sponsoring Authority

submitted the proposal on 20th January 2023. Though the date of

the incident i.e. registration of CR as well as the incidents of in-

camera statements, have occurred in the month of October and

November 2022, the in-camera statements were recorded on 10 th

January 2023 and 14th January 2023 when the Petitioner was in

custody. The proposal was submitted on 20th January 2023.

12. The said additional affidavit explains in detail all the steps

taken on various dates for verification of the in-camera

statements and further scrutiny. The explanation in the said

paragraph is satisfactory. Thus, there is no merit in the

submissions made on behalf of the petitioner that there is a delay

in the issuance of the detention order.

13. The decision of this court in the case of Rashid Sahukat

Husain Sayyed @ Jagga relied upon by the learned counsel for 15 / 19 904-wpst-7365-23.docx

the petitioner is of no assistance to the petitioner, in view of the

different facts in the present case. A perusal of the facts of the

said case reveals that the explanation given by the detaining

authority with respect to the steps taken was not accepted by this

Court, and hence, the ground of challenge raised on the basis of

delay in issuance of the detention order was accepted. This

Court, in the said decision, recorded that there was no

explanation for the delay, and the explanation provided was

vague and general in nature. Thus, the decision in the case of

Rashid Sahukat Husain Sayyed @ Jagga relied upon by the

learned counsel for the petitioner is of no assistance in the facts

of the present case.

14. In the case of Nagnarayan Saryu Singh, the detaining

authority had relied upon a CR dated 19 th January 2005; where

the detenu was granted bail on 29 th January 2005; incidents of

in-camera statements were of February 2005; the in-camera

statements were recorded on 24th, 25th, 26th, and 27th May 2005

and on the basis of proposal dated 30 th May 2005, detention

order was passed on 22nd June 2005. Hence, the ground of 16 / 19 904-wpst-7365-23.docx

challenge raised by the detenu was that there was delay of more

than four months from the date of CR and incidents of in-camera

statement, in issuing detention order. Thus, this Court while

considering the challenge to the detention order on the ground

of delay held that unless the in-camera witnesses had indeed

suffered at the hands of the detenu, there would be no reason for

the witnesses to come forward and give statements against the

detenu. This Court held that verification of in-camera statements

by an officer of the rank of the Assistant Commissioner of Police

would provide a sufficient check and would lend sufficient

assurance that the statements are genuine. This Court, after

referring to various steps taken by the detaining authority held

that the delay will have to be computed from the date of the last

material came to be known to the sponsoring authority by way of

in-camera statements recorded on 27th May 2005 and the

proposal was dated 30th May 2005 based on which the order of

detention was issued on 22nd June 2005. Thus, by referring to the

aforesaid, this Court held that the order of detention would not

stand vitiated on the ground of delay.

17 / 19 904-wpst-7365-23.docx

15. In the present case, detention order is passed within one

month and ten days of the last in-camera statement recorded.

The detaining authority in the additional affidavit has in detail

explained the various steps taken for verification and scrutiny of

the in-camera statements and the proposal of the sponsoring

authority. Thus, the relevant dates and events of the present case,

coupled with the fact that the in-camera statements are recorded

when the petitioner was in custody, supports the genuineness of

the in-camera statements. Considering the facts of the case, it

cannot be said that the incidents are stale or that the live link

between the prejudicial activities and the order of detention is

snapped. Thus, considering the facts of the present case, the

principles of law laid down by this Court in the case of

Nagnarayan Saryu Singh are squarely applicable.

16. So far as the grounds raised with respect to the allegations

against the petitioner being individual in nature and not against

the public at large is concerned, we do not find any merit in the

same. A perusal of the detention order reveals in detail the

nature of the allegations against the petitioner. We have already 18 / 19 904-wpst-7365-23.docx

referred to in detail the allegations against the petitioner as

reflected in the detention order. Perusal of nature of allegations

against the petitioner cannot be termed as only law and order

problem, but the same are a public order situation as correctly

assessed by the detaining authority, as is required to safeguard

and protect the interest of public. Perusal of the incidents

mentioned in the ground of detention substantiates the subjective

satisfaction arrived at by the detaining authority as to how the

activities of the petitioner are prejudicial to the maintenance of

the public order. Hence, there is no substance in the ground

raised on behalf of the petitioner that the allegations against the

petitioner are individual in nature and not against the public at

large.

17. So far as the ground raised in clause (E) is concerned, the

learned APP is right in submitting that the same is with respect to

the merits of the CR, and hence, the same cannot be a ground of

challenge to the detention order. The submissions made on

behalf of the petitioner in the ground of challenge as raised in

clause (E) of the petition are purely with regard to the merits of 19 / 19 904-wpst-7365-23.docx

the allegations against the petitioner in the CR registered against

him. The detention order reveals that the charge-sheet is already

filed in the said case and the same is pending trial. It is settled

law that the merits of the allegations in the CR registered against

the detenu cannot be a ground of challenge to the detention

order. Hence, there is no substance in the ground raised in clause

(E) of the petition.

18. Thus, for the reasons recorded above, we do not find any

merits in the grounds of challenge raised by the petitioner.

19. Hence, the petition is dismissed. Rule is discharged.

(GAURI GODSE, J.) (REVATI MOHITE DERE, J.)

Signed by: Iresh S. Mashal Designation: PS To Honourable Judge Date: 30/08/2023 15:13:07