Bombay High Court
Mohammad Arbaz @ Sanu S/O Mohammad ... vs State Of Mah. Thr. Govt. Of Mah. Home Dep. ... on 17 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:631-DB
1 wp.347.23-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 347 OF 2023
Mohammad Arbaz @ Sanu S/o.
Mohammad Israil @ Manja Ansari,
Aged about 28 years, Occ. Pvt. Work,
R/o. Near Kamalbaba Dargah,
Mominpura Police Station,
Tahsil Nagpur City, Nagpur.
(Presently Central Prison, Nagpur). ... PETITIONER
...VERSUS...
1. State of Maharashtra
Through Government of Maharashtra,
Home Department (Special), Second Floor,
Main Building, Mantralaya,
Madam Cama Road,
Hutatma Rajguru Chowk,
Mumbai-400032.
2. Commissioner of Police,
Nagpur City, Nagpur.
3. Superintendent of Central Prison,
Nagpur. ... RESPONDENTS
------------------------------------------------------------------------------------------------
Mr. A. K. Bhangde, Advocate for petitioner.
Mr. M. J. Khan, Add.P.P. for respondents/State.
-----------------------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
MRS.VRUSHALI V. JOSHI, JJ.
RESERVED ON : 09.01.2024
PRONOUNCED ON : 17.01.2024.
JUDGMENT (PER : MRS.VRUSHALI V. JOSHI, J.):
-
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel appearing for the parties.
2 wp.347.23-J.odt
2. The petitioner has challenged the orders dated 30.01.2023 and
07.02.2023 detaining him under the provisions of the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-
Offenders, Dangerous Persons and Video Pirates, Sand Smugglers and
Persons Engaged in Black Marketing of Essential Commodities Act, 1981.
3. Inviting attention to in-camera statements of the witnesses A and
B dated 19.12.2022, learned Counsel for the petitioner submitted that the
portion about date of incident of November 2022 is not mentioned as he
was behind the bar from 14.11.2022 to 28.12.2022, the opportunity to
defend himself stands negated. Supply of such incomplete document
tantamount to non-supply thereof and therefore, vitiates the order of
detention.
4. One of the grounds raised in support of this petition is that the
detaining authority has relied upon in-camera statements of two witnesses.
It is submitted that neither in the verification of these two statements nor in
the impugned order any satisfaction has been recorded about unwillingness
of such witnesses to come forward and give a statement against the
petitioner. He submits that this was necessary before any subjective
satisfaction to be said to have been genuinely reached before making the
impugned order. He relied on the decisions of this Court in the cases of
2017 ALL MR (Cri.) 2051 (Gokul Sahabrao Sabale Vs. The Commissioner of
3 wp.347.23-J.odt
Police, Pune & Ors., Writ Petition No. 531/2021 (Prata Ajay Kharare Vs.
State of Maharashtra & Ors.) decided on 28.10.2021, Writ Petition
No.768/2015 (Sanjay Shahu Vs. State of Maharashtra & Ors.) decided on
01.02.2016, 2017 (3) Mh.L.J. (Cri) 475 (Rajkumar @ Anda s/o. Jaglal
Jaiswal Vs. State of Maharashtra & Ors.), 2022 ALL MR (Cri) 2561 (Sheikh
Yetal Vs. State of Maharashtra, 2021 ALL MR (Cri.) 3831 (Swapnil
Subhashrao Salunkhe Vs. Commissioner of Police, Nagpur City & Ors. and
(2020) 13 SCC 632 (Khaja Bilal Ahmed Vs. State of Telangana and Ors.) in
support of his contention. He has also stated that the statements were
recorded only to make out the case of the detention. On the basis of two
crimes, the order was passed. It is against the individual and not against
the public at large.
5. The learned Additional Public Prosecutor defends the impugned
detention order based on the reasoning contained therein. The reply is not
filed. He relied on the record submitted by the respondents. The learned
Additional Public Prosecutor strongly placed reliance upon the contents in
the detention order passed by the Police Commissioner stating that there is
specific consideration of the in-camera statement. He has relied on the
judgment of this Court in the case of Pravin @ Bhayya Pratap Shinde Vs.
Commissioner of Police, Pune [2020 LawSuit(Bom)50].
4 wp.347.23-J.odt
6. The learned Counsel for the petitioner has stated that the
subjective satisfaction required to be reached is about the unwillingness of
such person to come forward to give any statement. The identity of this
person is kept secret so as to extend him necessary protection. As identity is
kept secrete, and therefore, the person like petitioner whose liberty is at
stake, does not get an effective opportunity to traverse those statements,
requirement of recording subjective satisfaction is mandatory. According to
him, the Police Commissioner nowhere expressly finds that the persons
whose in-camera statements are relied upon by him for expressed
unwillingness to come forward to depose against the petitioner or that
because of terror allegedly spread by the petitioner in the locality, other
persons are not ready and willing to come forward to give any statement or
report.
7. We have gone through the copies of in-camera statements made
available to the petitioner by the detaining authority show that the
statements are recorded on 19.12.2022 and same have been verified later
on by the Assistant Commissioner of Police, Kotwali Police Station on
03.01.2023. The said verification shows that the person whose in-camera
statement was recorded appeared before the Assistant Commissioner of
Police on 03.01.2023, and his statement recorded earlier on 19.12.2022,
was read over to him and he accepted that it was correctly recorded and
also accepted his signature upon it. The said statement was verified and the
5 wp.347.23-J.odt
Deputy Commissioner of Police has endorsed on 11.01.2023 that on
verification of said statement he is satisfied that nobody is ready to give
statement against the said person and the terror of petitioner in the locality
was perceived by him. Both the re-verifications are on same lines. On
perusal of the oral statement produced by the learned Additional Public
Prosecutor which were produced in sealed condition shows that the
statements do not bear any counter signature of Police Commissioner to
show that the Police Commissioner has gone through those statements or its
verification. There is no signature. It mentions that it was seen and verified
by respondent No.2 on 30.01.2023. Both the statements are verified on
30.01.2023. The Assistant Commissioner of Police has specifically
mentioned that he has satisfied from the statements that proposed detenue
has created terror in public, which shows that the statement was recorded
for the purpose of detention. It is mentioned in the contents that it was
verified and after satisfying it, the order was passed, but fact or effect of
verification has not been even mentioned.
8. Reproduction of contents of those statements cannot show
subjective satisfaction envisaged in law. The subjective satisfaction has to
be about unwillingness of such persons to come forward and to give
statement against the petitioner. Not a single word is there about this
aspect in the impugned order. The records also do not show that any effort
was made by the Police Commissioner to have a dialogue in this regard with
6 wp.347.23-J.odt
the Assistant Commissioner of Police. The impugned order which is based
upon such in-camera statement is therefore, bad in law. Moreover on
relying on two crimes registered immediately one after another, one on
12.11.2022 and another on 13.11.2022, on the basis of which the detention
order is passed, it appears that in both crimes, the complainant is the same
person and it was not against the public order, but it is against the
individual. The contention of the petitioner about recording of in-camera
statements for the purpose of said detention order cannot be ruled out.
Already for twice, the detention order was passed and it was executed.
Immediately within six weeks from his release of earlier detention order,
third detention order is passed, which creates doubt about recording of
statement of both witnesses on same day.
9. In view of the above said observations, we are, therefore,
satisfied that the subjective satisfaction as needed has not been reached and
recorded by the Police Commissioner, hence, the following order :
10. We set aside the impugned detention order as also the order
confirming the same.
11. Rule is accordingly made absolute in terms of prayer clauses (ii)
and (iii) of this petition.
7 wp.347.23-J.odt
12. The petitioner is ordered to be released from detention forthwith
unless his detention is not required required in any other matter.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
RGurnule
Signed by: Mrs. R.M. MANDADE
Designation: PA To Honourable Judge
Date: 17/01/2024 16:52:11
