Bombay High Court
Pranali Yogesh Karkhandis vs The State Of Maharashtra And Ors on 1 August, 2023
Bench: Revati Mohite Dere, Gauri Godse
2023:BHC-AS:21558-DB
Digitally
signed by
IRESH
IRESH MASHAL
MASHAL Date:
2023.08.01
19:42:44
+0530
901-WPST-6657-2023.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION ST NO. 6657 OF 2023
Pranali Yogesjh Karkhandis
Age 36 years, an Indian Inhabitant
residing at Karkhandis Chawl,
Room No. 2, Takarada Road,
Owala, Ghodbunder Road,
Thane (West) ...Petitioner
Versus
1. The State of Maharashtra
Through Secretary Home
Department (Special),
Mantralaya, Mumbai 400 032
2. Jai Jeet Singh,
The Commissioner of Police, Thane.
3. The Superintendent of Nasik
Road, Central Prison, Nashik ....Respondents
Mrs. Aisha Z. Ansari Advocate for the petitioner
Ms. M. H. Mhatre APP for the State
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
CLOSED FOR ORDERS: 14th JULY 2023
PRONOUNCED ON : 1st AUGUST 2023
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P.C. : [PER: GAURI GODSE, J.]
1. Heard.
2. This petition is filed to challenge the order of detention dated
23rd January 2023, bearing no. TC/PD/DO/MPDA/01/ 2023 passed by
respondent no. 2- Commissioner of Police, Thane City, in exercise of
powers 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 of Essential
Commodities Act, 1981 ('MPDA' Act) for detaining Yogesh Parshuram
Karkhandis.
3. By the order of detention dated 23rd January 2023, the detaining
authority has relied upon the complaint registered vide C.R. No. 312
of 2022 dated 4th September 2022 for the alleged offences punishable
under sections 452, 427, 504, 506, 506(2), read with 34 of the Indian
Penal Code and for the offences punishable under sections 4, 25 of the
Arms Act read with sections 142, 37(1)(a), 135 of the Indian Penal
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Code. The allegation against the detenu in the said CR is that the
detenu and his associates by carrying a sickle and iron rod, broke his
door, windows and a two-wheeler and threatened him and his family
due to some dispute on payment of money. The detaining authority
has referred to statements of five witnesses recorded in the said
investigation. The detaining authority has also referred to the orders
granting the police custody as well as Magistrate custody of the detenu
in the said C.R. as well as the order dated 5th December 2022 by which
the detenu was released on bail.
4. The detaining authority has further reproduced the gist of two
in-camera statements recorded on 19th December 2022 and 22nd
December 2022. The gist of in-camera statements refers to incidents of
the second week of November 2022 and the first week of November
2022. In the in-camera statements, the allegations against the detenu
are that he and his associates threatened the witness and extorted
money. Thus, by relying upon the aforesaid C.R. registered against the
detenu, the orders granting custody, as well as the order granting bail
to the detenu and two in-camera statements, the detaining authority
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has recorded subjective satisfaction for issuing the detention order.
5. The petitioner has raised various grounds for challenging the
order of detention; however, it is not necessary to consider all the
grounds raised by the petitioner, in as much as the Petition ought to
succeed only on the grounds raised in clauses (i) and (ii) of paragraph 5
of the petition which read as under:
"(i) The Petitioner says and submits that the incident
considered by the detaining authority which was
occurred on 03.09.2022, respectively which was
registered on 04.09.2022. The Petitioner says and
submits that the Detenu was arrested on 14.11.2022 in
the offence dated 03.09.2022 and was release on bail on
05.12.2022. The Petitioner says and submits that
assuming whilst denying that impugned order of
detention was warranted to be issued promptly and
vigilantly. The Petitioner says and submits that instead,
the impugned order of detention was belatedly and
leisurely issued on 23.01.2023 i.e. after the delay of
about 4 months and 20 days after the incident which
was relied upon by the detaining authority. The
impugned order of detention was thus issued after an
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inordinate and inexcusable delay. The Petitioner says
and submits that the live link having been snapped and
the credible chain if any, has been broken. The
Petitioner says and submits that the impugned order
detention is stale and remote in point of time. The
Petitioner says and submits that belated issuance of the
impugned order of detention vitiate the impugned order
of detention and make the impugned order of detention
null and void.
(ii) The Petitioner says and submits that for the purpose
of putting the detenu under M.P.D.A. Act, the two in
camera Statements were recorded by the sponsoring
authority one on 19.12.2022 and 22.12.2022. Both the
in camera statements speaks about the incident occurred
in 2nd week of November 2022 and 1st week of
November 2022 respectively. The Petitioner says and
submits that both the in camera statements are false and
fabricated. The said in camera statements were recorded
by the sponsoring authority just to put the detenu under
M.P.D.A. Act. The Petitioner says and submits that these
false and fabricated statements were recorded by
sponsoring authority to fill in the gap between the
incident considered by the detaining authority and the
issuance of the impugned order of detention passed
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against the detenu. It is also pertinent to note that said
in camera statements were recorded by the sponsoring
authority after the detenu released on bail. The
impugned detention order based on such false and
fabricated in camera statements are malafide null and
void."
6. Learned counsel for the petitioner submitted that the incident
with respect to the C.R. registered against the detenu is of 3 rd
September 2022, and the detenu was arrested on 14 th November 2022
and released on bail on 5th December 2022. The learned counsel thus
submitted that the order of detention was belatedly issued after a delay
of four months and 20 days from the said incident. She thus submitted
that in view of the inordinate delay, the live link has been snapped, and
the credible chain, if any, has been broken. Learned counsel thus
submitted that the order of detention is based on a stale incident which
has vitiated the order of detention.
7. The learned counsel further submitted that the in-camera
statements were recorded by the sponsoring authority on 19 th
December 2022 and 22nd December 2022, which referred to the
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incidents of the 2nd week and the first week of November 2022,
respectively. She submitted that the in-camera statements were false
and fabricated and were recorded only to fill up the gap between the
date of C.R. registered against the detenu and the order of detention.
The learned counsel thus submitted that there is no live link between
the incident referred to and the order of detention. Hence, the order
of detention is vitiated, and the continued detention of the detenu is
rendered illegal and impermissible hence the order of detention be set
aside, and the detenu be released forthwith.
8. In support of the grounds of challenge raised on behalf of the
detenu, the learned counsel for the petitioner has relied on the
decisions of the Hon'ble Supreme Court in the case of Pradeep
Paturkar Vs S. Ramamurthi and others 1, Sama Aruna Vs. State of
Telangana and Ors2. She also relied upon decisions of this Court in the
case of Austin Pinto Vs. Commissioner of Police, Greater Mumbai and
others3, Shivkumar Madeshwaran Devendra Vs The State of
1 AIR 1994 SC 656
2 (2018) 12 SCC 150
3 2005 ALL MR (Cri.) 28
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Maharashtra and others4 and Banka Sneha Sheela Vs The State of
Telangana and Others 5.
9. Learned counsel for the petitioner, thus by relying upon the
aforesaid decisions, submitted that the delay in issuing the detention
order after more than about four and half months from the date of
registration of the C.R. against the detenu has snapped the live link
from the date of the incident to the issuing of the detention order and
thus has vitiated the order of detention. The learned counsel thus
submitted that the order of detention be set aside, and the petitioner
be released forthwith.
10. Learned APP relied upon the affidavit dated 15 th June 2023 of
Shri. Anil Eknath Kulkarni, Joint Secretary, Government of
Maharashtra, Home Department (Special), Mantralaya, Mumbai, as
well as affidavit dated 15th May 2023 of the Commissioner of Police,
Thane and affidavit dated 3rd May 2023 of the Senior Inspector of
Police, Kasarvadavli Police Station, Thane in support of the order of
detention. The learned APP also relied upon the affidavit of Shri.
4 Cri. Writ Petition No. 3309 of 2021 dated 15.6.2022
5 (2021) 9 SCC 415
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Pramod Wagh, Superintendent, Nashik Road Central Prison, in
support of the order of detention.
11. With respect to the submissions made on behalf of the detenu on
the delay in issuing the detention order from the date of registration of
the offence is concerned, the learned APP submitted that though the
incidents referred to in the in-camera statements are of the second and
first week of November 2022, i.e. before the detenu was arrested with
reference to the aforesaid C.R. registered against him, on careful
scrutiny of the in-camera statements, sponsoring authority prepared
the necessary documents and submitted the proposal dated 24 th
December 2022 before the detaining authority. The learned APP
submitted that after careful verification of the papers, including the in-
camera statements, the Assistant Commissioner of Police, Vartak Nagar
Division, Thane City endorsed the proposal on 28 th December 2022
and forwarded the papers to the Deputy Commissioner of Police,
Zone-V. She submitted that thereafter the Deputy Commissioner, after
going through the same on 2 nd March 2023, forwarded the same to the
Additional Commissioner of Police, West Region, who gave his
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remarks on 5th January 2023 and forwarded it to Senior Police
Inspector, M.P.D.A. Cell Thane City. The Senior Police Inspector,
M.P.D.A. Cell, received the proposal on 6 th January 2023 and, after
scrutinising the same, gave his remarks on 10 th January 2023. The
learned APP, by referring to the affidavit filed on behalf of the
detaining authority, submitted that in between, there were two
holidays on 7th January 2023 and 8th January 2023 being Saturday and
Sunday; the proposal was submitted to the Deputy Commissioner, who
gave his remarks on 13th January 2023 and submitted it to the
Additional Commissioner of Police (Crime).
12. The learned APP thus submitted that the Additional
Commissioner of Police (Crime), on 16th January 2023, endorsed the
proposal and, after going through all the papers, approved it on 19 th
January 2023, and all the papers were then forwarded to sponsoring
authority. The learned APP submitted that the sponsoring authority
took some time for fair typing for preparing the translation of the
documents in the language known to the detenu and for preparing
necessary sets of documents. She thus submitted that after completing
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the necessary work, the Senior Police Inspector, M.P.D.A. Cell verified
all the documents and placed the same before the detaining authority.
Thereafter, the detaining authority, on carefully going through the
proposal and the papers, finalised the grounds for detention and issued
the order of detention on 23rd January 2023.
13. The learned APP thus submitted that the last CR registered
against the petitioner, the date of arrest of the detenu, as well as his
release on bail, and the relevant incidents recorded in the in-camera
statements, show that there is a live link of the incidents relied upon
for issuing the detention order. She thus submitted that the aforesaid
steps taken by the concerned authorities would show that prompt
action was taken and that there is no substance in the submissions
made on behalf of the detenu that the order of detention is passed on a
stale incident and that the live link between the incident and order of
detention is snapped in view of any delay.
14. The learned APP, in support of her submissions, relied upon the
decisions of this Court in the case of Vishal Mahabal Vs. State of
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Maharashtra and others6, Nagnarayan Saryu Singh Vs A. N. Roy,
Commissioner of Police and others 7 and Ram alias Pappu Kore Vs.
State of Maharashtra and others8.
15. Before discussing the various decisions of this Court as well as
the Hon'ble Supreme Court referred to above, it is necessary to note
the relevant facts of the present case, as under:
3rd September 2022: Incident of relied-upon CR
4th September 2022: CR registered
1st and 2nd week of November 2022: Incidents of in-camera
statements
14th November 2022: Detenu arrested
5th December 2022: Detenu released on bail
19th December 2022 and 22nd December 2022: Two in-camera
statements recorded
24th December 2022: Proposal submitted by sponsoring
authority
6 Cri. Writ Petition No. 2702 of 2021 dated 4.12.2021
7 (2006) 2 Bom CR (Cri.) 64
8 2023 Cri. LJ 1586
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23rd January 2023: Order of detention issued
16. By taking into consideration the aforesaid dates and events, it is
necessary to deal with the grounds of challenge raised on behalf of the
detenu in the present case. The submissions on behalf of the detenu
are twofold: firstly, it was submitted that there is no live link between
the incident of the CR relied upon and the order of detention and
secondly, that the in-camera statements recorded only after the detenu
was released on bail were false and fabricated to fill up the gap
between the date of C.R. registered against the detenu and the order of
detention.
17. A perusal of the aforesaid dates and events shows that the
incidents referred to in the in-camera statements are prior to the date
of arrest of the detenu. The order of detention issued on 23 rd January
2023 indicates that by relying upon the said CR registered on 3 rd
September 2022 and on going through the proposal submitted by the
sponsoring authority and the two in-camera statements recorded on
19th and 22nd December 2022 and verified by the concerned ACP, the
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detention order is issued. However, the in-camera statements are
recorded fifteen days after the detenu was released on bail.
18. Thus, the fact cannot be ignored that though the incidents
referred to in the in-camera statements had occurred prior to the arrest
of the detenu, none of the witnesses of the in-camera statements came
forward to record statements when the detenu was in custody. Though
the incidents referred to in the in-camera statements are prior to the
arrest of the detenu, it is only after the detenu was released on bail that
the in-camera statements were recorded. If we consider natural human
conduct, it is very difficult to believe that the witnesses who kept quiet
when the detenu was in custody came forward fifteen days after he was
released on bail. Moreover, the Police have not made any efforts to
challenge the order granting bail or apply for cancellation of bail on
the basis of the incidents about which the in-camera statements were
recorded. Thus, the submission that the in-camera statements were
created only to facilitate the passing of the detention order has a great
deal of substance. Instead of applying for cancellation of bail, the
Police submitted a proposal for the detention of the detenu by relying
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upon the in-camera statements.
19. A perusal of the affidavits relied upon by the learned APP in
support of the detention order does not show that any efforts were
taken by the police to challenge the order granting bail or apply for
cancellation of bail, in as much as the incidents referred to in the in-
camera statements are prior to the date of arrest of the detenu and the
in-camera statements are recorded only after the detenu is released on
bail.
20. The relevant aspect with regard to the aforesaid facts and
circumstances is that if the in-camera statements are ignored, the
detention order is based on a stale incident that occurred prior to more
than four months, which snaps the live link between the incident and
the order of detention, especially when no objectionable conduct is
attributed to the detenu after he is released on bail. Thus, there is
substance in the submissions made by the learned counsel for the
Petitioner that only to fill in the gap between the date of CR and the
order of detention; the in-camera statements were recorded.
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21. In view of the aforesaid facts and circumstances, the decisions
relied upon by the learned APP will not be of any assistance to support
the order of detention. This Court, in the case of Nagnarayan Saryu
Singh, was dealing with the ground of challenge that the order of
detention was issued after about four months from the date of
registration of CR as well as the date of recording the in-camera
statements. This Court, in the said decision, has discussed and
distinguished the decision of the Hon'ble Supreme Court in the case of
Pradip Paturkar and the decision of this Court in the case of Austin
Pinto, relied upon by the learned counsel for the Petitioner in the
present case. This Court, in the said decision of Nagnarayan Saryu
Singh, has also discussed and distinguished the decision of this Court
in the case of Jainab Sale Mohammed Vs M.N. Singh and others 9 and
further has relied upon the decisions of this Court in the cases of
Zebunissa Abdul Majid Vs M.N. Singh and others 10 and Deepak
Murudkar Vs R.H. Mendonca and others.11
22. Thus, this Court, in the case of Nagnarayan Saryu Singh after
9 2002 ALL MR (Cri.) 2305
10 2002 (Cri Suppl) Bom CR 67
11 2002 (Cri. Suppl) Bom CR 829
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discussing the aforesaid decisions, has held that the case of Pradip
Paturkar was decided in the year 1992 when the in-camera statements
recorded by the sponsoring authority were not verified by the officer
of the rank of Assistant Commissioner of Police, which is done now
and that the identity of the witnesses of the in-camera statements is
also verified. This Court further relied upon the observations of this
Court in the case of Zebunissa Abdul Majid, thereby distinguishing
the case of Pradip Paturkar, and holding that the Supreme Court has
not laid down that in all cases where statements are recorded after the
detenu is released on bail, should be viewed with suspicion. This Court
also relied upon the proposition laid down by this Court in the case of
Deepak Murudkar that the delay has to be computed from the date of
the last in-camera statement and not from the date of CR. Thus, this
Court, in the case of Nagnarayan Saryu Singh, considered the facts of
that case that the detaining authority, after considering all the aspects
of the matter, was subjectively satisfied with the genuineness of the
material placed before it, and thus, held that verification of statements
by the officer of the level of Assistant Commissioner of Police is a
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sufficient check to hold that the statements are genuine.
23. On perusal of facts in the case of Nagnarayan Saryu Singh, it
reveals that the incidents referred to in the in-camera statements had
occurred after the detenu was released on bail, and thus the in-camera
statements were also recorded after the detenu was set free. However,
in the case at hand, the incidents referred to in the in-camera
statements are prior to the date of arrest of the detenu and the in-
camera statements are recorded after the detenu is released on bail.
More so, there is no objectionable activity attributed against the
detenu after he is released on bail. Thus, in our view, the principles
laid down by this Court in the case of Nagnarayan Saryu Singh will not
apply in the present case.
24. So far, reliance placed by the learned APP on the decision of this
Court, in the case of Vishal Mahabal, is concerned; this Court was
dealing with a ground of challenge raised on behalf of the detenu that
there is no live link between the last incident and the order of
detention and that the period should be computed from the date of
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registration of CR and not from the dates of incidents referred to in
the in-camera statements. Unlike the facts of the present case, in the
said case of Vishal Mahabal, the date of the incident referred to in the
in-camera statements as well as the date of recording the in-camera
statements is after the detenu was released on bail. Thus, the nature of
the ground of challenge raised in the present case was not under
consideration in the case of Vishal Mahabal. Thus, in our view, even
the principles laid down in the case of Vishal Mahabal, will not apply
to the facts of the present case.
25. So far, reliance placed by the learned APP on the decision of this
Court, in the case of Ram alias Pappu Kore, is concerned; the same
deals with a fact situation where reference was made to past cases;
however, the detention order was passed by arriving at a subjective
satisfaction by relying upon a recent case registered and the in-camera
statements recorded. Thus, the principles laid down in the said
decision is not applicable to the facts of the case at hand.
26. In so far as the decisions relied upon by the learned Counsel for
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the Petitioner are concerned, the principles laid down in those
decisions are squarely applicable to the case at hand. The Hon'ble
Supreme Court, in the case of Pradeep Paturkar, has held that in
paragraphs 13 and 14 as under:
"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
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detention order. The detenu is directed to be set at
liberty forthwith."
Emphasis Applied
Hence, in our view, the observations of the Hon'ble Supreme
Court in the case of Pradip Paturkar squarely apply to the facts of the
case at hand.
27. In the case of Sama Aruna, the detenu was charged with four
FIRs, and he was granted bail in three FIRs, and while in custody in
the fourth FIR, to prevent him from seeking bail, he was detained by
issuing a detention order. Though the facts in the present case are not
completely similar to the facts in the case of Sama Aruna, we find it
appropriate to refer to the observations made by the Hon'ble Supreme
Court while considering the scope of judicial review. In the said
decision, the Hon'ble Supreme Court has held in paragraphs 18, 21,
23 and 26 as under:
" The scope of judicial review
18. While reviewing a detention order, a court does not
substitute its judgment for the decision of the executive.
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Nonetheless, the court has a duty to enquire that the
decision of the executive is made upon matters laid down
by the statute as relevant for reaching such a decision. For
what is at stake, is the personal liberty of a citizen
guaranteed to him by the Constitution and of which he
cannot be deprived, except for reasons laid down by the
law and for a purpose sanctioned by law. As early as
in Machindar Shivaji Mahar v. R. [Machindar Shivaji
Mahar v. R., 1950 SCC OnLine FC 4 : AIR 1950 FC
129] , this Court observed : (SCC OnLine FC)
"... and it would be a serious derogation from that
responsibility if the court were to substitute its judgment
for the satisfaction of the executive authority and, to that
end, undertake an investigation of the sufficiency of the
materials on which such satisfaction was grounded.
... The Court can, however, examine the grounds
disclosed by the Government to see if they are relevant
to the object which the legislation has in view, namely,
the prevention of acts prejudicial to public safety and
tranquility, for "satisfaction" in this connection must be
grounded on material which is of rationally probative
value."
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21. Incidents which are old and stale and in which the
detenu has been granted bail, cannot be said to have any
relevance for detaining a citizen and depriving him of his
liberty without a trial. ..................
23. In this case, we find the authority has come to a
conclusion so unreasonable that no reasonable authority
could ever reach. A detaining authority must be taken to
know both, the purpose and the procedure of law. It is
no answer to say that the authority was satisfied. In T.A.
Abdul Rahman v. State of Kerala [T.A. Abdul
Rahman v. State of Kerala, (1989) 4 SCC 741 : 1990
SCC (Cri) 76] , this Court observed, where the authority
takes into account stale incidents which have gone-by to
seed it would be safe to infer that the satisfaction of the
authority is not a genuine one.
26. The influence of the stale incidents in the detention
order is too pernicious to be ignored, and the order must
therefore go; both on account of being vitiated due to
malice in law and for taking into account matters which
ought not to have been taken into account."
Emphasis Applied
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28. This Court, in the case of Austin Pinto, had held that delay in
recording in-camera statements and absence of any explanation for not
recording the statements when the detenu was in custody vitiated the
order of detention. Even in the case of Austin Pinto, the in-camera
statements referred to the incidents that occurred prior to the arrest of
the detenu and the in-camera statements were recorded after the
detenu was released on bail. Thus, the principles laid down in the case
of Austin Pinto squarely apply to the facts of the present case. In the
case of Shivkumar Madeshwaran Devendra, though the date of
incidents referred to and the date of recording the in-camera
statements is after the detenu was released on bail, this Court has held
that incidents which are old and stale and in which the detenu has
been granted bail cannot be said to have any relevance for detaining a
citizen and depriving him of his liberty without trial. In the present
case, the date of the incident referred to in the in-camera statements is
prior to the date of arrest of the detenu; the in-camera statements are
recorded after the detenu was released on bail.
29. The Hon'ble Supreme Court, in the case of Banka Sneha Sheela,
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has accepted the arguments made on behalf of the detenu that the
detention order was totally perverse as it was passed only because
anticipatory bail/bail applications were granted; and that the correct
course of action would have been for the State to move to cancel the
bail that has been granted if any further untoward incident were to
take place. In the said case order of detention was issued by relying
upon various FIRs registered against the detenu, in which he was
granted anticipatory bail/bail. The detaining authority had issued the
detention order by recording that recourse to normal law may not be
an effective deterrent in preventing the detenu from indulging in
further prejudicial activities. The Supreme Court, while accepting the
said arguments, held in paragraphs 15 and 32 as under:
"15. ................... If a person is granted anticipatory
bail/bail wrongly, there are well-known remedies in the
ordinary law to take care of the situation. The State can
always appeal against the bail order granted and/or apply
for cancellation of bail. The mere successful obtaining of
anticipatory bail/bail orders being the real ground for
detaining the detenu, there can be no doubt that the
harm, danger or alarm or feeling of insecurity among the
general public spoken of in Section 2(a) of the Telangana
Prevention of Dangerous Activities Act is make-believe
and totally absent in the facts of the present case.
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32. On the facts of this case, as has been pointed out by
us, it is clear that at the highest, a possible apprehension
of breach of law and order can be said to be made out if
it is apprehended that the detenu, if set free, will
continue to cheat gullible persons. This may be a good
ground to appeal against the bail orders granted and/or
to cancel bail but certainly cannot provide the
springboard to move under a preventive detention
statute. We, therefore, quash the detention order on this
ground.........................."
Emphasis applied
30. Thus, considering the facts of the present case, the principles
laid down in the aforesaid decisions relied upon by the learned counsel
for the Petitioner squarely apply to the facts of the present case.
31. In view of the facts of the present case, we find it necessary to
take note of the well-settled principles of law on preventive detention,
which holds that all the laws on preventive detention are necessarily
harsh, which curtails the personal liberty of a person guaranteed by the
Constitution, without a trial; hence, the court has a duty to enquire
about the genuineness of the decision of the executive. Considering the
aforesaid, we find that in the present case, since the in-camera
statements are not recorded when the detenu was in custody raises
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doubt on it's credibility in as much as the incidents referred to in the
in-camera statements are prior to the date of arrest of the detenu and
the in-camera statements are recorded only fifteen days after the
detenu is released on bail; and there are no efforts taken by the police
to challenge the order granting bail or apply for cancellation of bail by
taking recourse to the well-known remedies of ordinary law. Hence, if
the in-camera statements are ignored, the order of detention stands
based only on one CR, which is registered more than 4 months prior
to the date of the detention order. It is important to note that no case
is made out that after the detenu was released on bail, he has indulged
in any objectionable activity till the date of proposal or even till the
date of order of detention. Hence, the stale and solitary case relied
upon by the Detaining Authority fails to show any live link with the
order of detention and is not sufficient to hold the petitioner as a
habitual offender. Thus, we see no reason to invoke the provisions
under the preventive detention statute instead of taking recourse to the
well-known remedies under ordinary law. As a result, the petition is
allowed by passing the following order:
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ORDER
I. The petition is allowed, and Rule is made absolute in terms of prayer clause 'a', which reads as under:
"(a) This Hon'ble court be pleased to issue a Writ of Habeas Corpus or any other appropriate writ, order direction quashing and setting aside the said order of detention dated 23.01.2023 having No. TC/ PD/DO/MPDA/01/2023 and be pleased to direct that the detenu Yogesh Parshuram Karkhandis be set at liberty forthwith."
II. The detenu is set at liberty forthwith, if not required in any other case.
All concerned to act on the authenticated copy of this order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
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