Prathamesh @ Sagar S/O Dilip ... vs State Of Mah. Thr. Its Joint ...
2023 Latest Caselaw 1994 Bom

                                                                   WP472.2022.doc




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

            CRIMINAL WRIT PETITION NO. 472 OF 2022

 1. Prathamesh @ Sagar s/o Dilip Solanke, Aged
    about 20 years,
    R/o. Hanuman Nagar, Near Hanuman Mandir
    Akot, Tq. Akot, Dist. Akola

 2. Pratibha wd/o Dilip Solanke                           ... Petitioners
    Aged about 41 years, Occ.: Housewife,
    R/o. Hanuman Nagar, Near Hanuman
    Mandir, Akot, Dist. Akola.
    Mobil No. 7020334858
                        Versus

 1. State of Maharashtra,
    Through its Joint Secretary,
    Home Department (Special), Second Floor,
    Main Building, Mantralaya, Mumbai - 32

 2. The District Magistrate
    Akola, Tq. & Dist. Akola.                         ... Respondents

 3. The Superintendent of Jail, Central Prison,
    Pune.

 4. The State of Maharashtra,
    Through its Police Station Officer, Police
    Station Akot City, Dist. Akola.


Mr. A.B. Mirza, Advocate for petitioners.
Mr. S.S. Doifode, APP for respondent Nos.1 to 4.

                          CORAM :           VINAY JOSHI, AND
                                            VALMIKI SA MENEZES, JJ.

                  RESERVED ON         :     30.01.2023.
            PRONOUNCED ON             :     01.03.2023.

                                                                    PAGE 1 OF 29
                                                            WP472.2022.doc




JUDGMENT : ( PER: Valmiki Sa Menezes, J )

Rule. Rule made returnable forthwith. Heard finally

by consent of both the learned counsel for the parties.

(2) This is a writ petition invoking our jurisdiction

under Article 226 of the Constitution of India, impugning detention

order dated 14.02.2022, passed by the respondent No.2, under

Section 3(2) of the Maharashtra Prevention of Dangerous Activities of

Slumlords, Bootleggers, Drug Offenders and Dangerous Persons, Video

Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of

Essential Commodities Act, 1981, (for short "the Act"), whereby the

petitioner No.1, has been ordered to be detained for a period of 12

months under the said Act. The order dated 14.02.2022 has received

approval and been confirmed by the Government of Maharashtra,

respondent No.1 herein by order dated 22.03.2022 which has also

been impugned herein by the petitioner.

(3) The main grounds raised in the petition are as

under:

PAGE 2 OF 29 WP472.2022.doc

(a) That there is no subjective satisfaction of the Sub-

Divisional Police Officer of the in-camera statements recorded by the

Sponsoring Authority or of the Detaining Authority as to the

truthfulness of the statements ;

(b) That the impugned order dated 14.02.2022, does not

indicate the period of detention which in any event, under Sub-Section

2 of Section 3 of the Act, would not exceed three months in the first

instance;

(c) That the Detaining Authority has not properly recorded its

subjective satisfaction as to the reasons and the material on the basis

of which, it concluded that the detention of the petitioner was required

on account of his act, being prejudicial to maintenance of public order.

(4) In reply to the petition, the respondent No.4, had

filed an affidavit, inter alia, recording therein that the truthfulness of

the statements of the in-camera witness "A", and the statement of in-

camera witness "B" was verified by the concerned Sub-Divisional Police

Officer and found true, after visited the spot of the offence on

09.02.2022 ; the affidavit further avers that the Detaining Authority

PAGE 3 OF 29 WP472.2022.doc

has seen the statements and verified the same through the concerned

Officer and only thereafter, has recorded its subjective satisfaction for

passing of the impugned order.

The affidavit further states that even if the detention

order does not specify the period of detention, the entire order would

not be vitiated by lack of specifying the period as held by the Hon'ble

Supreme Court in the case of T. Devaki Vs. Government of Tamil Nadu

and Ors. reported in 1990 (2) SCC 456. The affidavit further avers

that the proposal for detention was placed before the Advisory Board

constituted under the Act and after giving the petitioners herein, an

opportunity of being heard, the Advisory Board consisting of High

Court Judges, considered the petitioners' contentions and

recommended continuation of the detention, to the State Government.

(5) We have heard the learned counsel appearing for

the petitioners and learned APP for respondents and perused the

record.

(6) Learned counsel for the petitioner, first submits that

the in the impugned order the Authority relied upon five crimes

PAGE 4 OF 29 WP472.2022.doc

alleged to have been committed by the petitioners, which have been

enumerated in a chart contained in the order along with one instance

of preventive action against the petitioner No.1. He submits that at

the relevant time, all five cases were under investigation and no

charge-sheet has been filed before any competent Court, though in the

fifth Crime bearing No.911/2021, the petitioner was released on bail.

On 15.11.2021. He submits that other four crimes i.e. Crime

Nos.46/2022, 95/2022, 96/2022 and 100/2022 have respectively

being registered on 17.01.2022, 02.02.2022, 03.02.2022 and

04.02.2022, raising a strong doubt as to whether the same have really

been committed by the petitioner No.1, they being in such a proximity

to each other and still under investigation, thus raising a question, as

to whether they could at all have been relied upon even before the

completion of the investigation, for the purpose of passing of the

impugned order.

(7) The learned counsel for the petitioners' submits that

since the investigation was still under way in some of these crimes,

there was no cause for taking any preventive action under the Act, as

regular criminal law would take care of all these crimes when charge-

PAGE 5 OF 29 WP472.2022.doc

sheet if any, were filed before the concerned Court, pursuant to the

investigations. He, therefore, submits that taking into consideration

these five crimes, could not be a ground for proceeding and assuming

jurisdiction under Section 3 of the Act.

(8) It is further submitted by the learned counsel for the

petitioners that the in-camera statements recorded by the Sponsoring

Authority were unreliable, as they did not disclose any criminal activity

of the petitioners in any public place or disclose any activity that could

be termed as one against public order ; he argues that the specific

criminal activity complained of by witness "A" and "B", in their

statements recorded in-camera do not disclose any acts, which are

against public order and can at the most be termed as individual acts,

at the most creating a law and order situation. Thus, the petitioner

argues that there being no public order situation as seen from the in-

camera statements, the Authority has acted without jurisdiction vested

in it under Section 3, as it could exercise such jurisdiction, only if the

acts complained of were acts in breach of public order.

The learned counsel for the petitioners then submits

that after being released on bail by the Sessions Court in December

PAGE 6 OF 29 WP472.2022.doc

2021, he was not arrested for any of the other crimes referred to in

impugned order ; he submits that the impugned order does not specify

the period of detention and that being so, the entire process under the

Act is vitiated and the impugned orders become unsustainable.

(9) The learned counsel for the petitioners relies upon

the judgment of the Supreme Court of India in Shaik Nazneen Vs. The

State of Telangana & Ors., MANU/TL/0386/2022 , to argue that there

is a distinction between a law and order situation and a public order

situation and orders of preventive detention are exceptional powers

given to the Government to be exercised in an exceptional situation

since they strike hard at the freedom and liberty of an individual and

thus, cannot be exercised in a routine manner. He further relied upon

three judgments of this Court, the first in Ganesh alias Gajaraj Sainath

Patil Vs. State of Maharashtra and Ors., reported in 2022 (1) Mh.L.J.

(Cri.) 464, Shahjahan w/o Kalimkhan Samshadkhan Pathan Vs. State

of Maharashtra and anr., reported in 2016 (5) All MR (Cri.) 4233 and

Hanif Karim Laluwale Vs. State of Maharashtra and Ors., dated

28.06.2022 in Criminal Writ Petition No.75/2022, to contend that the

order is silent with regard whether all the facts were ascertained by

PAGE 7 OF 29 WP472.2022.doc

the Police Commissioner in the in-camera statements, and there was

no subjective satisfaction recorded by the authority on these

statements while passing the impugned order.

(10) The learned Additional Public Prosecutor for the

respondents opposes the grant of reliefs in the petition and take us

through the various averments in the affidavit filed by respondent

No.4. The respondents contend that a bare reading of the facts

contained in the five FIRs of the crimes relied upon by the Authority,

would reveal that the acts of the petitioners have taken place in close

proximity of each other, the first being on 15.11.2021 and the last

being on 04.02.2022, all within a period of less than two months and

being crimes of serious nature, mainly of extortion of money from

citizens at public places, naturally causing fear in the minds of citizens

and terrorizing them. He further submits that the two in-camera

statements recorded of the secret witnesses also clearly disclose that

both alleged offences committed by the petitioner No.1 against those

witnesses, are of extortion committed at public places i.e. at a market,

and the effect of the incidents clearly cause fear and terror in the

minds of citizens who refused to come forward to testify against the

PAGE 8 OF 29 WP472.2022.doc

petitioner. He submits that the facts stated in the in-camera witness

statements and a reading of the FIRs in the five criminal cases, which

are under investigation, one of which resulted in the petitioner being

enlarged on bail, if read cumulatively, would leave no manner of doubt

that within a short span of two months the acts of the petitioners have

wreaked terror in the area of Akot city, necessitating the passing of the

impugned detention order.

(11) It is further submissions of the respondents that the

content of the in-camera statements were verified by the concerned

police, as recorded on the statement itself and the subjective

satisfaction on the content of the in-camera statements was specifically

recorded by the concerned Authority, who has also recorded subjective

satisfaction as to the grounds based upon the five criminal cases

against the petitioners. The learned APP for the respondents therefore,

submits that there is no reason for interference with the impugned

orders.

(12) The learned APP for respondents then relied upon

the judgment of the Supreme Court in Hasan Khan Ibne Haider Khan

Vs. R.H. Mendnoca and Ors., reported in (2000) 3 SCC 511, to

PAGE 9 OF 29 WP472.2022.doc

contend that merely because bail was granted in any of the offences

relied upon by the Authority, and while passing the detention order

there was some delay, the detention order would not in any manner be

vitiated. He then cites two other judgments of this Court, the first in

Rohit @ Karan s/o Purshottam Naukariya Vs. State of Maharashtra,

reported in 2022 LawSuit (Bom) 1020 and Vishal Ananda Mahabal Vs.

State of Maharashtra, reported in 2021 LawSuit (Bom) 1417, to

contend that there is no requirement for the Detaining Authority to

personally verify the genuineness of the in-camera statements and

their verification by an Independent Officer would be enough of

compliance with the provisions of the Act ; he further contends that

Vishal Ananda Mahabal (supra), has also held that verification of the

in-camera statements by the SDPO and satisfaction of the identity of

the witness was enough compliance to rely on the statements, and

further that when the Detaining Authority has stated that it has

personally seen the in-camera statements and endorsed the same, that

in itself would be substantial compliance with the provisions of the

said Act, for placing reliance on such statements as material for

passing the detention orders.

PAGE 10 OF 29 WP472.2022.doc

(13) For considering the various submissions made by the

learned counsel for the rival parties, it would be apposite to the

provisions of the Section 3(2) of the Maharashtra Prevention of

Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and

Dangerous Persons, Video Pirates, Sand Smugglers and Persons

Engaged in Black-Marketing of Essential Commodities Act, 1981.

Section 3(2) of the MPDA Act, which reads as under:

"3. (1)......

(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub- section :

Provided that the period specified in the order made by the State Government under this sub-section shall not, in the first instance, exceed [six months] but the State Government may, if satisfied as aforesaid that it is necessary so to do amend such order to extend such period from time to time by any period not exceeding [six months] at any one time."

PAGE 11 OF 29 WP472.2022.doc

(14) A bare reading of the provisions of Section 3 of the

Act, would empower the Detaining Authority to assume jurisdiction

under this provisions, only if it comes to the subjective satisfaction

based upon the material before it, that the acts of the petitioner No.1

would be prejudicial to the maintenance of the public order and

preventive detention of the petitioner would be required to restrain

him from acting in any manner prejudicial to public order. The

jurisdiction could be assumed and exercised once the Authority records

subjective satisfaction that the acts of the petitioner could be brought

within of the definition of any of the unlawful activities under Section

3(1), in this case, within the definition of "Goonda" under Section 2(b-

1) of the Act.

(15) Section 2(b-1) of the Act defines "Goonda" to mean

a person, who either by himself or as a member or a leader of a gang,

habitually commits, or attempts to commit or abets the commission of

any of the offences punishable under Chapter XVI or Chapter XVII, or

Chapter XXII of the Act.

(16) In the present case, the petitioner No.1 is alleged to

have committed various acts, which include offences under Sections

PAGE 12 OF 29 WP472.2022.doc

435, 436, 120(b), 392, 504, 506, 324 read with Section 34 of the

Indian Penal Code, 1860. Amongst these acts, a reading of the five

FIRs which are relied upon by the Sponsoring Authority in which

investigations are under way, would leave no doubt that the petitioner

No.1 was allegedly indulging in extortion of money, threats to kill,

robbery and arson. A reading of these FIRs also discloses that most of

these incidents have taken place in public view, at locations such as

main city squares or at markets in broad view of the public, causing

the public to panic. In one of the incidents in Crime No.911/2021, the

petitioner No.1 has been accused of committing arson and burning the

shop of the complainant, after which the petitioner was arrested and

enlarged on bail, on 01.12.2021. Reading of these incidents would

leave no doubt in our minds that the activities alleged in these five

crimes would clearly place the petitioner within the definition of

"Goonda" under Section 2(b-1) of the Act.

(17) Next we come to the in-camera statements of

witness 'A' & 'B', which were considered as material for passing

impugned order.

(18) The first in-camera statement of witness 'A' was

PAGE 13 OF 29 WP472.2022.doc

recorded on 05.02.2022, wherein the witness has alleged that in the

fourth week of December, 2021 at 15:30 hours in the afternoon, the

witness was selling fruits on a handcart by the side of Anjangaon Road,

at Akot City, when the detenu, who was sitting on his motorcycle in

that area along with his companions, bought fruits from the witness

without paying for the same. The witness records that when he asked

for the money due for the purchase of the fruit from the petitioner, the

petitioner grabbed his collar and threatened him by asking the witness

'gjke[kksjk rq eyk vksG[kr ukgh dk+\ eh dks.k vkgs '. After threatening the witness the

petitioner abused and beat up to witness and further threatened him

'rq>s vxj ;kgk is rsjh gkrxkMh yxkds /kank djuk gS] rks eq>s eghus dk 3000/& :- gIrk yxsxk ojuk rq rsjk

ns[k ys'. The witness further states that when he asked for help from the

people in the vicinity, none volunteer to help the witness due to the

fear caused by the utterances of the petitioner.

The contents of the statements, if accepted, clearly

demonstrates that the petitioner has not only committed an act of

extortion but using threatening words such as "eh dks.k vkgs" informing the

public at large, who the detenu has publicly intimidated the witness

with a demand of extortion money of Rs.3,000/- per month as "Hafta",

PAGE 14 OF 29 WP472.2022.doc

if the witness desired to run his business at that location. This act

itself would have been enough to cause fear in the hearts of all traders

and people in that locality and would certainly spread terror at that

place.

(19) The statement of in-camera witness "B" was also

recorded on 05.02.2022 and has stated that in the second week of

January, 2022 at 20:00 hours at night, while he was returning home

from his garment shop at Rajasthan Chowk of Akot City, the detenu

along with his two companions, pulled out a knife and put it to the

abdomen of the witness, forcibly snatched from his shirt pocket an

amount of Rs.1,200/-, after which they beat up the witness and abused

him and threatened him with the words "lkys vxj rqus ;s ckr fdlh dks crkbZ rks

vdksV es jguk eq'dhy dj Mkyqaxk" After committing this act of robbery and

threatening the witness that he would not be permitted to live in Akot

city, if he reported this incident to any one, the witness sought help

from the people, who had come running from around the locality and

witnessed the incident. However, hearing the threat of the detenu, all

these people left the locality out of fear and were not ready to help the

witness or stand-up to the act of robbery committed by the detenu.

PAGE 15 OF 29 WP472.2022.doc

(20) A bare reading of these statements also clearly sets

out that the incidents took place at a central locality of the city in

broad public view. The incidents were one where the detenu is alleged

to have committed robbery and threatened the witness with a knife

and has clearly resulted in members of the public, who saw the

incident reacting to the threats, and feeling a sense of fear of reprisal

against them, if they would help that witness, thus prompting them to

leave the area. Such acts would clearly cause fear in the minds of the

general public, of the presence of the detenu in their City.

(21) The next question then would be whether the in-

camera statements could not be relied upon, as argued by the

petitioner, for reasons that the genuineness of the statements made by

the two witnesses were not ascertained by the Superior Officers or

their truthfulness verified or that the authority had not recorded

subjective satisfaction on the question of verification of the said

statements.

(22) A reading of the in-camera statements would show

that the same were recorded by the Police Inspector of the Police

Station of the Akot City, and their contents were verified by the Sub-

PAGE 16 OF 29 WP472.2022.doc

Divisional Police Officer, Akot, who has so recorded at the reverse of

the statement. The statement of the SDPO for the records that the

Officer visited the spot, where the incident took place and also

ascertained from the witness that what he has stated is correct. The

same SDPO has also recorded at the reverse of the in-camera

statement of both witnesses about paying a visit to the spot where the

offence took place, confirming the contents of the statements from the

secret witness.

(23) Vishal Aananda Mahabal (supra), cited by the

respondents was a case where the detenu has taken a specific

arguments that there was no proper verification by a Superior Officer

of the truth in the statements of the in-camera witnesses recorded, nor

was there any subjective satisfaction recorded as to the identity of the

witnesses and their truthfulness, as raised by the petitioner herein.

Whilst deciding this issue, this Court has held in

Vishal Aananda Mahabal (supra) as under:

"21. The Petitioner's third ground of challenge is that there is no verification of the in-camera statements. It is submitted that the Detaining Authority has not personally verified the truthfulness of the

PAGE 17 OF 29 WP472.2022.doc

in-camera statements, and there is no material on record to show that the Detaining Authority has personally verified the witnesses. The Detaining Authority has opened the in-camera statement at 2.00 pm., and on the same day, he has passed the detention order. He submitted that the Detaining Authority did not discuss the matter either with the Police Officer or Sub-divisional Police Officer to verify the authenticity.

It was also submitted that the Senior Inspector of Police recorded the statements, and the Sub-divisional Officer had verified them, and the Detaining Authority did not interact with either of the authorities who recorded or verified. The Petitioner has relied upon the decisions in Ravindrasing @ Mullasing, son of Sarwansing Gour vs. The Commissioner of Police, Nagpur (City), Nagpur & Ors., (Criminal Writ Petition No.660 of 2015 dated 29 February, 2016), Sanjay s/o Ramlal Shahu vs. State of Maharashtra & Anr. (Criminal Writ Petition No.768 of 2015, oral judgment dated 1 February, 2016) and Smt. Vijaya Raju Gupta vs. Shri. R.H. Mendonca & Ors., 2001 AllMR (Cri) 48.

22. The learned APP submitted that the Detaining Authority has recorded in subjective satisfaction about the truthfulness of in-camera statements as well as he has perused in-camera statements as can be seen from the endorsements. It was submitted that the verification is done on the back of the same page by the Sub Divisional Officer which is relied on by the Detaining Authority to reach his satisfaction.

23. In the case of Smt. Zebunnisa Abdul Majid vs. M.N. Singh & Ors. 2001 CrLJ 2759, the Division Bench noticed that the detaining authority there had stated in affidavit that the in-camera statements were verified by higher grade police officer of the rank of Assistant Commissioner of Police and in view of the verification of the in- camera statements made by Senior Police Officer of the rank of A.C.P., and that he was subjectively satisfied that the contents of the in-

PAGE 18 OF 29 WP472.2022.doc

camera statements were genuine. This was accepted as a sufficient compliance. In the case of Nagnarayan Saryu Singh, the Division Bench has observed thus:

"[20] ......... The Assistant Commissioner of Police verifies the identity of the person making the statement i.e. the incamera witnesses are indeed real persons and not fictitious persons. After making enquiries with the incamera witnesses when the Assistant Commissioner of Police is satisfied about the genuineness of the statement made by the witness, he certifies the said incamera statement. The very purpose of an officer of the rank of Assistant Commissioner of Police verifying the statements of incamera witnesses is to lend assurance that the statements can be safely relied upon. Unless the incamera witnesses had indeed suffered at the hands of the detenue, there would be no reason for these persons to come forward and give statements against the detenue. In our view, verification of incamera witnesses by an Officer of the rank of the Assistant Commissioner of Police would provide a sufficient check & would lend sufficient assurance that the statements are genuine." (emphasis supplied)

As regards the decision relied upon by the learned Counsel for the Petitioner on the issue of verification is concerned, in the case of Ravindrasing @ Mullasing Sarwansing Gour, the commissioner had not put his initials or any remarks on the statements and the Court, as a matter of fact, found that there was no application of mind. Similar is the position in the case of Sanjay Ramlal Shahu, where the Division Bench found from inspection of the original record that it did not contain any counter signature that the detaining authority has gone through the statement. These two decisions are not applicable as in the present case there is such endorsement shown to us. The case of Smt. Vijaya Raju Gupta is another decision where the Court found that

PAGE 19 OF 29 WP472.2022.doc

neither in the detention order nor in the ground of detention the detaining authority had stated that he was satisfied with truthfulness of the statements made in-camera statement unlike the case at hand where the ground of detention expressly states so. In the case of Shahjahan w/o. Kalimkhan Samshadkhan Pathan vs. State of Maharashtra and anr. 2016 ALL Mr. (Cri.) 4233, the Division Bench found, as a matter of fact that the record did not indicate that statements were duly sealed and initialed by the Commissioner of Police. A specific ground was taken to challenge the order that Police Commissioner made no effort to discuss the matter to verify the authenticity, but no reply was filed in controverting the ground. Therefore, this issue is not decided as a proposition of law by the Division Bench, but the Division Bench drew attention to the fact that the reply was filed denying the assertion. Thus, the argument advanced by the Petitioner that the detaining authority must interact with the witnesses and the recording authority, has no basis in law. On the contrary, the Division Benches of this Court in Nagnarayan Saryu Singh and Smt. Zebunnisa Abdul Majid have held that if the detaining authority is satisfied that a higher grade police officer verified the in- camera statements, the detaining authority can rely on the contents of the in-camera statements as authentic and genuine.

24. In the present case, the Detaining Authority has not only filed an affidavit but has recorded the subjective satisfaction in the detention order as well. The Detaining Authority has stated on the aspect of verification has stated that the said statements were verified by the Sub Divisional Police Officer, Miraj, Dist. Sangli. The Sub Divisional Police Officer, Miraj, District: Sangli was satisfied with the identity of the witnesses and also verified the truthfulness of the incident and fear expressed by visiting the place of incident SDPO submitted a report of verification to him dated 24 March 2021. The Detaining

PAGE 20 OF 29 WP472.2022.doc

Authority has stated that given the verification done by the superior officer about the truthfulness and the apprehension expressed by the in-camera witnesses, he was satisfied that the statements of in-camera witnesses were authentic and genuine. The Detaining Authority has also stated that on 6 May 2021, he has personally seen the in-camera statements and endorsed the same. Thus in the present case, in the record, the grounds of detention and reply clearly show that there was an application of mind at the recording level, verification level and at the stage of passing the detention order. Thus there is there no merit in the third ground of challenge as well."

(24) Another co-ordinate Bench of this Court in Rohit @

Karan s/o Purshottam Naukariya (supra) has dealt with a similar

submission and concluded that when the statements are verified for

their genuineness by an Assistant Commissioner of Police and such

statements were considered by the Detaining Authority after discussing

the same in the impugned order, no law mandates that it is only the

Detaining Authority, which must personally verify the genuineness of

the statements. Rohit @ Karan (supra) holds as under :

"7. The statements of confidential witnesses were verified for their genuineness by the Assistant Commissioner of Police, Sadar Division, Nagpur and report to that effect was submitted by him to the Detaining Authority. The Detaining Authority has considered these statements and this is evident from the discussion made in the impugned order. There is no law, which mandates that it is only the

PAGE 21 OF 29 WP472.2022.doc

Detaining Authority, which must personally verify the genuineness of the statements of the confidential witnesses. The principle of fairness would require that verification of in-camera statements is done by an independent Officer, who has not recorded the statements. This requirement of fairness has already been complied with in the present case. The statements were recorded by the senior Police Inspector, Police Station, Mankapur, Nagpur while their verification was conducted by the Assistant Commissioner of Police, Sadar Division, Nagpur - an independent Police Officer. We, therefore, do not think that the verification conducted by an independent Officer, who was not the Detaining Authority in the present case was vitiated in law. This is also the view taken by the other coordinate Bench of this Case in the case of Pravin @ Bhayya Pratap Shinde vs. Commissioner of Police, Pune, State of Maharashtra;

Superintendent, Yerwada Central Prison, Pune 2020 LawSuit (Bom) 50 wherein the Division Bench was satisfied with the verification of the in-camera statements made by the Assistant Commissioner of Police even though the Detaining Authority was different Officer.

8. About the argument of the learned Counsel for the petitioner that the in-camera statements are vague in nature, we must say that the argument is completely against the record of the case. The statements of witnesses "A" and "B" show that both of them have referred to the period, time and place of the incidents. It is also stated in sufficient details as to how the incident leading to instilling fear in the mind of witnesses took place. The material provided in the statements is of such a nature that proper verification of the incident is possible. This indeed has been done and the statements have been found to be genuine. Thus, we are of the view that there is no merit in the petition."

PAGE 22 OF 29 WP472.2022.doc

(25) Applying the ratio of the judgments rendered by this

Court in all these cases, to the facts of the present case, it is clear that

both in-camera statements give details of the locality at which the

detenu indulged in acts of extortion and threats, the incident having

been seen by the public at large, who refused to help the witnesses due

to the terror situation created by the presence of the detenu with his

companions at such public place. By this, it is clearly established that

the statements having been verified as to their genuineness by the

higher officer, they could form the material for the Detaining Authority

to arrive at its subjective satisfaction as to whether the detenu was

required to be detained in terms of Section 3 of the Act. Clearly, from

these in-camera statements and from the statements recorded of the

complainants in the five FIRs relied upon by the Detaining Authority

for passing the impugned order, the acts complained of against the

detenu a such, that would cause fear and terror amongst the citizenry

of the locality. It has been clearly established that the presence of the

detenu would cause a public order problem.

(26) Ganesh alias Gajaraj Sainath Patil (supra) cited by

the learned counsel for petitioners, was a challenge to a detention

PAGE 23 OF 29 WP472.2022.doc

order based on one solitary crime registered against the detenu and

two in-camera statements. That case proceeded on the basis of a

solitary criminal offence, which itself did not form the ground for

arriving of the subjective satisfaction of the Detaining Authority.

A bare reading of paragraph 38 of the judgment

clearly records that the grounds of detention neither appear to have

any direct nexus nor a live link with the immediate need to detain the

petitioner under the said Act. The judgment proceeded on the specific

facts of the said case. Such is not the case before us, where not the

Detaining Authority records its subjective satisfaction on the basis of

five crimes, contents of the FIR of which are referred to as well as the

two in-camera statements of witnesses which were verified. The

conclusions of subjective satisfaction are based upon a live link with

the incidents and the need for detention of the petitioner, since all the

incidents are within a period of two months preceding the detention

order. In our view, the ratio of Ganesh Vs. State of Maharashtra

(supra) would not be of any aid to the petitioner.

(27) Shaik Nazneen Vs. State of Telangana and Ors.

(supra), was a judgment rendered by the Supreme Court on the

PAGE 24 OF 29 WP472.2022.doc

distinction between a 'law and order' situations and a 'public order'

situation, after making reference to its earlier decision in the case of

Ram Manohar Lohiya Vs. State of Bihar. The distinction drawn by the

Hon'ble Supreme Court in that judgment and in the judgment of Ram

Manohar Lohiya Vs. State of Bihar which are by now no more res

intigra and well known. In the present case, we have arrived at a clear

conclusion that all the incidents have taken place in broad public view

and at a public place within the city. Citizens have reacted to the

incidents and out of fear of the detenu have refused to give statements

or come forward to help the witnesses. This is therefore, a clear case

where the detenu would be a direct threat to public order, and not a

case of a law and order situations. Shaik Nazneen (supra) would

therefore, support the respondents in that the ratio thereof would

substantiate the case of the detenu being one of breach of public order.

(28) The petitioner has then cited Hanif Karim Laluwale

(supra) which was decided purely on the facts of that case. As noted in

paragraphs 2 and 6 of that judgment, the only cases registered against

the detenu were four bootlegging crimes for which no arrests were

effective by the Investigation Officer, even though the crimes were

cognizable in nature. In our considered opinion, Hanif Karim Laluwale

PAGE 25 OF 29 WP472.2022.doc

(supra) does not lay down any ratio and was passed in the specific

facts of that case and thus, cannot be cited as a precedent before us.

We are of the considered opinion that the facts of the present case

clearly justify the passing of the detention order, which is impugned

herein.

(29) Shahjahan Kalimkahn Samshadkhan Pathan (supra)

was a judgment rendered by the Supreme Court which proceeded on

the basis that the in-camera statements had not been ascertained by

the Commissioner of Police. The facts of that case as recorded in

paragraph 5 of the judgment proceeded on the basis that the higher

police officer had not verified or ascertained the truth of the in-camera

statements, which affected the subjective satisfaction recorded by the

Authority. Such are not the facts in the present case, where the

statements were recorded and then a detailed verification has been

done of the spot of the incident as well of the contents of the

statements which were ascertained from the witnesses by the SDPO,

who is the higher authority.

The judgment rendered in Shahjahan Kalimkahn

Samshadkhan Pathan (supra) would not be applicable to the facts of

the present case.

PAGE 26 OF 29 WP472.2022.doc

(30) We then referred to a judgment of the Hon'ble

Supreme Court in Hasan Khan Ibne Haider Khan (supra) cited by the

respondents on the question of what would be the facts which would

constitute material to conclude that the acts of the detenu were not in

breach of "law and order" but were acts which amounted to breach of

"public order". Hasan Khan Ibne Haider Khan (supra) records at

paragraphs 7 to 12 thus:

"7. This Court in Amanulla Khan Kudeatalla Khan Pathan v. State of Gujarat MANU/SC/0396/1999 : 1999 Cri.L.J. 3504 considered the expression "acting in any manner prejudicial to the maintenance of public order" and referring to an earlier decision of this Court in Mustakmiya Jabbarmiya Shaikh v. M.M Mehta, Commissioner of Police MANU/SC/0659/1995 ; (1995) 3 SCC 237 held that the fallout and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him on to prevent his subversive activities affecting the community at large or a large section of society and it is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of "law and order" or it amounts to a breach of "public order".

8. Mr Jain, learned Senior Counsel for the appellant has urged that the above activities of the appellant were stray incidents and as such did not disturb the public order.

PAGE 27 OF 29 WP472.2022.doc

9. Applying the above ratio to the grounds of detention, we find that the appellant extorted money from businessmen and also gave threats to the people at the public place and thereby undoubtedly affected the even tempo of life of the society, therefore, such activities cannot be said to be a mere disturbance of law and order. The contention of Mr Jain has no force.

10. Mr Jain has further urged that the criminal proceeding which was started on the complaint of Harishchandra Gupta was under Sections 341, 323, 334, 504, 506(11) and 34, IPC and all these sections were bailable and in fact bail was granted and, therefore, this act cannot be said to disturb public order. From the grounds of detention, we find that when Harishchandra Gupta and his brother sought for help, none came forward to their help out of fear of the appellant and this fact would show that the activities of the appellant disturbed the life of the people of the area.

11. In the grounds of detention, reference was made to the conviction of the appellant under the Monopolies & Restrictive Trade Practices Act. According to Mr Jain, this cannot be a ground for detention of the appellant, Mr Dhabe, learned Senior Counsel for the respondent has rightly submitted that reference was made to the above conviction only to show the past criminal history of the appellant.

12. Mr Jain has further submitted that there was delay in passing the detention order. We find that the inquiry was completed during the last part of February at the level of Deputy Commissioner of Police and the final order was passed on 12-4-1999. It cannot be said that there was undue delay and action was being taken in a routine manner, as after completion of inquiry matter had to be examined at various levels and finally the orders were passed by the Commissioner."

PAGE 28 OF 29 WP472.2022.doc

Thus, acts such as extortion of money from

businessmen and giving threats to the people at a public place,

undoubtedly affecting the even tempo of life of the society, in that

locality, as held by the Supreme Court that are grounds on the basis of

which one could arrive at a decision that such acts of detenu would

amount to acts, which would be in breach of "public order".

Applying ratio laid down in the judgment of the

Hasan Khan Ibne Haider Khan (supra) to the facts of the present case,

we find that the Detaining Authority has rightly concluded and

recorded its subjective satisfaction that the various acts of the detenu,

which were in broad public views and would cause terror in the minds

of the public and cause a public order situation cannot be faulted.

(31) For all the reasons discussed by us herein above, we

are of the firm view that the impugned orders do not call for

interference by this Court in exercise of powers under Article 226 of

the Constitution of India.

(32) Accordingly, we dismissed the writ petition. No

order as to costs.

                       [VALMIKI SA MENEZES, J.]                   [VINAY JOSHI, J.]
Signed By:PRITYPrity
                 S GABHANE
Reason:
Location:
Signing Date:02.03.2023 11:26
                                                                              PAGE 29 OF 29