Bombay High Court
Ashok Kisan Jadhav vs The State Of Maharashtra And Another on 8 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 884
Author: M.G. Sewlikar
Bench: V.K. Jadhav, M.G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1587 OF 2020
Ashok Kisan Jadhav
age 30 years, occ. Nil
R/o Sundernagar, Kada
Tq. Ashti, Dist. Beed
Presently lodged in Harsul Jail
Aurangabad Petitioner
Versus
1. The State of Maharashtra
Through Home Department
Mantralaya, Mumbai 32.
2. The District Magistrate
Beed. Respondents
Mr. G.R. Syed, Advocate for the petitioner.
Mr. M.M. Nerlikar, APP for both the respondents.
CORAM : V.K. Jadhav &
M.G. Sewlikar, JJ.
DATE : 8th March, 2021.
JUDGMENT :(Per M.G. Sewlikar, J.)
1. Rule. Rule made returnable forthwith.
2. By consent, heard fnally at admission stage. ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 ::: -2-
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3. By this petition, the petitioner has challenged his detention under 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 (in short "MPDA Act").
4. Facts leading to this petition in short are that on 22 nd August, 2020 Police Station, Ashti, forwarded a proposal for detention of the petitioner on the ground that the petitioner has criminal tendency and his activities are prejudicial to the maintenance of public order.
5. On the basis of this proposal, the District Magistrate, Beed, (hereinafter referred to as the 'Detaining Authority') passed the order of detention dated 25th August, 2020, stating therein that the petitioner is a weapon-wielding dangerous recidivist person having criminal antecedent. It is further stated that he has become a perpetual danger to the lives and properties of people residing in the local area of the jurisdiction of Ashti Police Station. He and his accomplices are armed with deadly weapons and do not hesitate to use the same while committing offences.
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6. It is alleged that the detenu was served with the order of detention alleging that the detenu is a dangerous person and is accused of committing serious offences like murder, attempt to murder, demanding ransom, conspiracy to commit murder and he always keeps fre arms with him. It is further alleged that he has formed a gang and collects ransom. Despite initiating proceeding under Section Section 110 of the Maharashtra Police Act, there seems to be no improvement in the petitioner and his criminal activities continued unabated. He has created reign of terror in the locality in which he resides because of which, nobody comes forward to lodge complaint or depose against him. Owing to his criminal activities, the persons residing in the jurisdiction of Ashti Police Station and adjoining areas are under constant fear. The detenu has criminal antecedents. Following is the list of offences the detenu has allegedly committed and the preventive action taken against him.
Offences
Sr. Police Station C.R.No. Section Filling date Remarks
No.
1 Ambhora 35/2013 307 IPC r.w. Sec. 30.03.2013 Pending
3/25 (1)(b) of
Indian Arms Act.
2 Ashti 101/2016 143, 147, 148, 149, 24.05.2016 Pending
384, 323, 504, 506
IPC r.w. Sec. 3/25 of
Indian Arms Act
3 Ashti 246/2016 143, 147, 148, 149, 10.10.2016 Pending
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323 IPC r.w. sec.
4/25 of Indian Arms
Act
4 Ashti 295/2017 384, 504, 506 IPC 25.07.2017 Pending
5 Nagar Taluka Dist. 236/2017 3/25 of Indian Arms 02.08.2017 Pending
Ahmednagar Act
6 Jamkhed, Dist. 75/2018 302, 120(b), 143, 29.04.2018 Pending
Ahmednagar 147, 148, 149, 212
IPC r.w. Sec. 3/25,
27, 07 Indian Arms
Act
7 Ashti 21/2020 142 of Maharashtra 03.02.2020 Pending
Police Act r.w. 3,
7/25 of Indian Arms
Act
8 Ashti NC Crime No. 504, 506 IPC 25.02.2020 ---
79/2020
7. The detention order further states that in-camera statements of witnesses A and B were recorded. From these statements, it is evident that nobody comes forward to lodge report against the petitioner. Therefore, detention of the petitioner has become necessary.
8. The order of detention was accordingly served on the petitioner. On 26th August, 2020, the petitioner was arrested and detained in Harsul jail. On 28th August, 2020, report regarding detention of the petitioner was sent to the State Government for confrmation. On 31st August, 2020, the State Government approved the detention order passed by the Detaining Authority. On 30 th ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 ::: -5- criwp1587.20.odt September, 2020, the Advisory Board issued notice of hearing scheduled on 9th October, 2020 through video conferencing. On 13th October, 2020, after hearing the petitioner/detenu, the Advisory Board approved the order of detention passed by the Detaining Authority. Thereafter, the State Government confrmed detention of the petitioner vide order dated 13th October, 2020. This order is impugned in this petition.
9. Heard Shri Syed, learned counsel for the petitioner and Shri Nerlikar, learned APP for the State.
10. Learned counsel Shri Syed submitted that the petitioner was in custody on the date of passing of the order of detention. The petitioner was not served with the order of detention. Consequently, he did not get any chance of making representation to the Detaining Authority. He further argued that since the petitioner/detenu did not get the opportunity of making representation, the order of detention is vitiated. He further submitted that there was no material before the Detaining Authority for passing the order of detention. He argued that in C.R. No. 21/2020, a pistol was recovered not from the petitioner but from his friend. Therefore, it was not proper on the ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 ::: -6- criwp1587.20.odt part of the Detaining Authority to consider this circumstance for the detention of the petitioner. He submitted that in-camera statements of witnesses A and B are as vague as they could be. The in-camera statements of witnesses A and B, therefore, do not refect commission of any cognizable offence. The detenu is a physically challenged person and cannot walk properly. He has undergone surgery of both the legs and got the steel rods implanted. He submitted that the petitioner is a social worker and just to tarnish the image of petitioner on the verge of elections, these proceedings were initiated. The order of detention, therefore, smacks of malafdes. Therefore, the detention order deserves to be set aside. He further submits that the order of detention does not specify the period of detention which itself vitiates the order of detention. He placed reliance on the judgments in the matters of Hanuman Rajaram Mhatre Vs. Commissioner of Police, reported in 2018(2) Mh.L.J. (Cri.) 393, Sunil Vs. State of Maharashtra reported in 2004(4) RCR (Criminal) 709 and Jay @ Nunya Rajesh Bhosale Vs. Commissioner of Police, Pune and others reported in 2015(31) RCR (Criminal) 683.
11. Learned APP Shri Nerlikar submitted that what the Court has to see in the matters of detention is whether the formalities ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 ::: -7- criwp1587.20.odt prescribed by the MPDA Act are complied with. He submitted that if this exercise is done, there is little scope for interference. He further submitted that the Court cannot substitute its opinion so far as subjective satisfaction of the Detaining Authority is concerned. He submitted that the petitioner is a dangerous person as is evident from the long list of offences registered against him. He submitted that because of the activities of the petitioner, he was externed from Beed District for a period of six months. But the petitioner violated the order and committed offence under Section 142 of the Maharashtra Police Act. He submitted that despite registration of so many offences and fling of charge-sheets against him and despite initiating externment proceedings against him the petitioner has not shown any improvement in his conduct rather his activities are showing ascending trend. He submitted that on a solitary offence, a person can be detained if the act committed by him has a potential to commit such types of offences. He further submitted that the acts of the petitioner are prejudicial to the maintenance of public order and, therefore, he has rightly been detained. He placed reliance on the cases of Magar Pansingh Pimple Vs. State of Maharashtra and another reported in 2006(1) Bom.C.R. (Cri.) 88 and Ram Manohar Lohia Vs. The State of Bihar and another reported in AIR 1966 ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 ::: -8- criwp1587.20.odt Supreme Court 740.
12. Before embarking upon the enquiry, the provisions of MPDA Act will have to be looked into :
13. "Dangerous person" is defned under Section 2(b-1) to mean a person, who either by himself or as member or 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 of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.
14. Thus, the essential requirement of this Section for determining whether a person is a dangerous person is that he must be habituated to committing offences or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959. Chapter XVI of the Indian Penal Code deals with the offences against the human body and Chapter XVII of the Indian Penal Code deals with the offences against the property.
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15. The next important provision is Section 2(a) of the MPDA Act. It has defned the expression "acting in any manner prejudicial to the maintenance of the public order". Section 2(iv) deals with the case of a dangerous person. Section 2(iv) reads as under:-
"Section 2:
(a) "acting in any manner prejudicial to the maintenance of public order" means -
(i) ............................
(ii) ...........................
(iii) .........................
(iv) in the case of a dangerous person, when he is engaged or is making preparations for engaging, in any of the activities as a dangerous person, which affects adversely, or are likely to affect adversely, the maintenance of the public order."
16. This provision signifes that merely a person is a dangerous person is not suffcient to invoke the provisions of the MPDA Act . The further essential requirement is that the activities of a dangerous person must prejudicially affect the maintenance of the public order. If the activities of a dangerous person do not affect prejudicially the ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt maintenance of the public order, the provisions of the MPDA Act cannot be invoked.
17. Section 3 of the MPDA Act provides thus :-
"3(1) The State Government may, if satisfed with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (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 satisfed that it is necessary so to do, it may by order in writing, direct that during such period as may be specifed in the order such District Magistrate or Commissioner of Police may also, if satisfed as provided in sub-section (1), exercise the powers conferred by the said sub-section:
Provided that the period specifed in the order made by the State Government under this sub-section shall not, in the frst instance, exceed [six months] but the State Government may, if satisfed as aforesaid that it is necessary so to amend such order to extend such period from time to time by any period not exceeding [six months] at any one time.::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt (3) When any order is made under this section by an offcer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."
18. This Section mandates that if a District Magistrate or a Commissioner of Police is satisfed that a person needs to be detained with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, shall make the order of detention. Sub-Section 3 of Section 3 casts a duty on the Detaining Authority to report the fact of detention to the State Government together with the grounds on which the order has been made within a period of twelve days from the date of passing of the order.
19. Section 8 of the MPDA Act makes it obligatory for the Detaining Authority to communicate to the detenu the grounds on which the order has been made within fve days of the date of detention and also shall afford him an opportunity of making representation against ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt the order of the State Government. Section 10 of the MPDA Act requires the State Government to place before the Advisory Board within three weeks from the date of detention of a person the grounds on which the order has been made. Section 11 states that within seven weeks from the date of detention of the person, the Advisory Board shall submit the report to the State Government. Section 13 states that detention shall not be for more than twelve months.
20. Learned APP Shri Nerlikar produced copies of the fle before the Sub-Divisional Magistrate-respondent No.4 and the fle before the Divisional Commissioner-respondent No. 2, for perusal of this Court. On perusal of these fles, it is evident that the procedure prescribed in the Act has been complied with. The order of detention under Section 3 of the MPDA Act was passed, it was sent for confrmation within the prescribed period to the State Government and the State Government confrmed it within three days. The Advisory Board was constituted. On 30th September, 2020, the Advisory Board issued notice of hearing scheduled on 9 th October, 2020 through video conferencing. The petitioner was heard through video conferencing on 9th October, 2020. On 13th October, 2020, the ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt Advisory Board approved order of detention passed by the Detaining Authority. Accordingly, the State Government confrmed detention vide order dated 31st October, 2020. This chronology of events clearly states that the compliance as contemplated by the MPDA Act has been made.
21. The point raised by learned counsel for the petitioner is that the petitioner was not served with the notice and, therefore, he could not make representation as required by Section 3 of the MPDA Act. He submitted that the petitioner was in custody at that time.
It is pertinent to mention that nowhere in the petition the petitioner has agitated this grievance. Learned counsel for the petitioner was specifcally asked by us as to whether he has raised this ground in the petition. He fairly submitted that he did not specifcally raise this question in his petition. This itself is suffcient to reject the contention of the petitioner. However, to satisfy ourselves, we perused the record produced by learned APP. It shows that the signature of the petitioner appears on the copy of the detention order. It is clear from this that the detention order was served on the petitioner by the jailor. Therefore, this objection of the petitioner does not survive.
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22. Learned counsel for the petitioner further argued that since the petitioner/detenu did not get the opportunity of making representation, the order of detention is vitiated. He placed reliance on the case of Sunil (supra) where the Division Bench of this Court at Nagpur has held as under :-
24. We fnd no diffculty in arriving at the conclusion that under the MPDA Act, if an order is passed under sub-section (1) of Section 3 of the said Act by the offcer to whom such powers of the State Government are vested by virtue of sub-section (2) of Section 3 of the said Act, then from the date of passing of the order of detention till the same is approved by the State Government, he is the detaining authority who is vested with the power of revocation or modifcation of the said order, as contemplated under section 14(1) of the said Act. We say so unhesitatingly on the basis of the authority of the Supreme Court in the case of Amanulla Khan Kaudeatalla Khan Pathan v. State of Gujarat, 1999 SCC (Cri) 1014 : 1999(3) RCR (Cri) 481 (SC), in which a similar question came for consideration before the Apex Court relating to preventive detention under the Gujrat Prevention of Anti-Social Activities Act, 1985, which is pari materia to the MPDA Ac in our State.
The Apex Court, after considering the case of Kamleshkumar Ishwardas Patel, 1995(2) RCR (Cri) 276 : 1995(4) SCC 51 (supra), has stated in para 6 of the reproted judgment as under (at p. 3508 of Cri.L.J.) :-
"6. The next contention raised by the learned Counsel for the detenu is that even though the representation was made to the Advisory Board yet the detaining authority was also duty bound to ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt consider the same as the detaining authority also could have revoked the order of detention and non- consideration of the representation by the detaining authority constitutes an infraction of Article 22(5) of the constitution and in support of this contention reliance has been placed on the decision of this Court in Kamleshkumar Ishwardas Patel v. Union of India. This contention to us appears to be based upon a misconception of the relevant provisions of the Act. Admittedly, the representation in question was made to the Advisory Board and not to the detaining authority. If a representation is made by the detenu to the authorised offcer for revoking or modifying the detention order then it would be certainly his constitutional obligation to consider the same and pass appropriate orders thereon and non- consideration would testamount to violation of constitutional rights to a detenu under Article 22(5). But if a representation is made to a specifed authority and that specifed authority in the given case is the State Government and Advisory Board considers the same and disposes of it, then at that stage the question of the detaining authority considering the said representation even though not addressed to it does not arise. If the Gujrat Prevention of Anti-Social Activities Act, 1985 is analysed it would appear that the legislature has circumscribed the powers of the detaining authority by providing that an order of detention would lapse after 12 days from the passing of the order unless the State Government has within the said period endorsed and ratifed the same. Therefore, within the aforesaid period of 12 days, the detaining authority has the power of revocation which it can exercise before the State Government ratifes the same. But once the State Government approves the order of detention then on the same set of circumstances the detaining authority cannot revoke an order of detention. Though if subsequent circumstances change, the detaining authority may have the power of revocation in view of the provisions ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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of the General Clauses Act. But when no
representation is made to the detaining authority after the order of detention passed by it is approved by the State Government indicting new set of circumstances requiring the detaining authority to consider its representation, and on the other hand the representation is addressed to the Advisory Board, we see no requirement of law for that representation also to be disposed of by the detaining authority and such non-disposal would amount to violation of the constitutional rights of the detenu under Article 22(5) of the Constitution......"
The order of detention clearly shows that the petitioner was communicated that he had a right to make representation to the Detaining Authority and that he has a right to make representation to the State Government against the detention order and that he has a right to make representation to the Advisory Board against the order of detention. This fnds place in paragraphs No. 10 to 14 of the order of detention dated 25th August, 2020, which is reproduced for the facility of reference hereunder :-
10. I further inform you that pending approval of this detention order under Section 3(3) of the said Act by the State Government, you have a right to make representation to the Detaining Authority i.e. the District Magistrate, Beed, Nagar Road, Beed 431122 through the Superintendent of the Jail, where you are detained. On approval of the detention order by the State Government under Section 3(3) of the said Act, the right of representation to the Detaining Authority is automatically extinguished.::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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11. You are informed that you have a right to make representation to the State Government against the detention order and that you shall be afforded the earliest opportunity to make such representation. If you wish to make such representation, you should address it to The Additional Chief Secretary (Home), Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai 400 032 and submit it through the Superintendent of the Jail, where you have been detained.
12. You are further informed that the State Government shall within three weeks from the date of your detention make reference to and place the requisite material before Advisory Board, constituted under Section 9 of the said Act, to enable the Advisory Board to make a report whether in its opinion there is suffcient cause for your detention. The Advisory Board is required to make a report aforesaid within seven weeks from the date of your detention.
13. You are further informed that if you wish to make any representation to the Advisory Board against the detention order, you may do so and address it to the Chairman, Advisory Board, constituted under Section 9 of the said Act, C/o Desk Offcer, Desk-10, Home Department (Special), Mantralaya, Mumbai 400032 and submit it through the Superintendent of the Jail, where you are detained.
14. You are also further informed that you shall be heard in person by the Advisory Board in due course if the board considers it essential to do so or if you desire to be heard in person by the Advisory Board, you may intimate your desire to the Advisory Board or to the Government of Maharashtra, through the Superintendent of Jail, where you are ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt detained, so that the Advisory Board may be intimated about it and necessary arrangements may be made to produce you before the Advisory Board on the date fxed by it for the purpose.
From the bare perusal of these paragraphs, one can easily make out that the petitioner has been apprised of his right to make representation to the Detaining Authority, to the State Government and to the Advisory Board against the order of detention and that personal hearing would be given by the Advisory Board to the petitioner-detenu. Therefore, the Detaining Authority has complied with all the provisions of the Act in letter and spirit. For these reasons, the argument of learned counsel for the petitioner cannot be sustained.
23. Next question that was raised by learned counsel for the petitioner is with regard to the subjective satisfaction of the Detaining Authority. The law in this regard is well settled. In the case of Magar Pansingh Pimple (supra) in paragraph No. 10 of the judgment, it has been observed as under :-
10. ....... Smt. Hemalata Kantilal Shah v. State of Maharashtra, A.I.R. 1982 S.C. 8, relied upon by learned APP was a matter of detention under COFEPOSA Act and while considering the scope of challenge to such detention orders in the proceedings under Article 226 of the Constitution before High ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt Court and under Article 32 or 136 of the Constitution before the Supreme Court, the Supreme Court observed, thus, in para 15:
"It is needless to say that the High Court under Article 226 of the Constitution and the Supreme Court either under Article 32 or under Article 136 of the Constitution do not sit on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is/are committed, the offencer is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the Detaining Authority to formally comply with the provisions of sub-article (5) of Article 22 of the Constitution of India. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the Detaining Authority. If the formalities have been complied with, the Court cannot examine the materials before it and fnd that the Detaining Authority should not have been satisfed on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an Appellate Court." (emphasis added)
24. It will have to be now seen whether the Detaining Authority had material before it for recording subjective satisfaction. The record produced by the learned APP shows that because of criminal activities of the petitioner, the petitioner was externed for a period of six months vide order of Sub-Divisional Magistrate, Patoda, in Chapter Case No. 1/2019 dated 10 th October, 2019. The record ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt produced further shows that on 3rd February, 2020, the petitioner violated the order and committed offence under Section 142 of the Maharashtra Police Act. The record further shows that the offence under Section 142 of the Maharashtra Police Act and under Section 325 of the Arms Act came to be registered against the petitioner. The detention order shows that on 3rd February, 2020, Police Inspector Suryawanshi received a tip off that on 2nd February, 2020, at about 11.00 am, the petitioner and his friend opened fre by a country-made pistol at Karad city and by brandishing the pistol he has spread terror in the public. The house of the petitioner was raided and the petitioner was found there. At that time, one Akshay More was with the petitioner. A country-made pistol was recovered from the said More. The details of the offence registered against the petitioner also show that in past also, he was charged with the offence under Arms Act.
25. The in-camera statements of witnesses have also been recorded. In-camera statement of witness A shows that on 2 nd February, 2020, at about 8.00 pm, petitioner met him and uttered obscene words suspecting him to be the informer of the police. He gave threats brandishing pistol. People around him fed and the ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt shopkeepers downed their shutters.
26. In-camera statement of witness B shows that on 3 rd February, 2020, at about 10.30 am, petitioner met him and humiliated him calling him in local language i.e. Marathi as Kutrya (dog). The petitioner searched for his pockets and robbed him of Rs. 2,000/- at the point of knife.
27. Thus, this clearly shows that so far as witness B is concerned, the offence under Section 384 of the Indian Penal Code has been committed. Despite that he did not dare to lodge First Information Report against the petitioner fearing violent backlash from the petitioner having regard to petitioner's criminal activities. Witnesses A and B could dare depose against the petitioner only when they were given assurance that they would not face the wrath of the petitioner. This clearly shows that the activities of the petitioner are prejudicial to the maintenance of public order.
28. Learned counsel Shri Syed submitted that the petitioner was not supplied with the verifcation made by the Competent Authority. It is pertinent to note that alongwith the fle of the ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt Detaining Authority and the Appellate Authority, original statements of witnesses A and B are produced, which show that the Competent Authority has verifed the statements of witnesses A and B. On perusal of original in-camera statements of witnesses A and B, it is seen that the Competent Authority has made an endorsement that the authority was satisfed that the statement made by the witnesses and the incidents were true. According to learned counsel, this verifcation was not made available to the petitioner. According to learned counsel for the petitioner, this itself vitiates the order of detention. For this purpose, he placed reliance on the case of Jay @ Nunyua Rajesh Bhosale (supra). In paragraph No. 10 of the judgment it has been observed thus :
10. Thus, a perusal of the Section 2(b-1) would show that if the person singly or as a member or a leader of a gang "habitually commits" or attempts to commit or abets the commission of any offence punishable under chapter XVI or Chapter XVII of the IPC or Chapter V of the Arms Act, he would be a dangerous person in terms of Section 2(b-1) of the MPDA Act. Just as a single swallow does not make a summer a solitary act, does not constitute a habit. In the instant case, after the three in camera statements are excluded from consideration as the verifcation of all the in camera statements by the ACP was not furnished to the detenu and CR no. 3088 of 2015 cannot be taken into consideration, for the reasons stated in paragraph 7 above by us, that leaves us to only with CR No. 91 of 2015. We shall now proceed to examine whether on the basis of this CR, the detenu ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt can be held to be a dangerous person so as to sustain the order of detention.
29. The submissions of learned counsel are contrary to the pleadings of the petitioner in the petition. In the petition, in paragraph No. 4(XIII) it has been stated that "both the statements are verifed by the Superintendent of Police, Beed, which are not recorded as per the procedure prescribed in law." The so called verifcation does not disclose the verifcation of the truthfulness of incidents which is a mandatory requirement of law. It is not explained by the petitioner as to how he could make these submissions when according to him, the verifcation was not supplied to him. Therefore, the natural concomitant is that he was supplied with said verifcation made by the Dy. S. P. Therefore, this submission of learned counsel also is not sustainable.
30. In the case of Hanuman Rajaram Mhatre (supra) relied on by the petitioner, it is held that subjective satisfaction formed by the Detaining Authority suffers from non-application of mind as same is formed by taking into consideration extraneous and irrelevant material. This is not the factual situation in the case at hand. There is nothing on record to show that extraneous material ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt was considered by the Detaining Authority.
31. Learned counsel Shri Syed submitted that the order of detention is vitiated as it does not specify the period of detention. He submitted that on this ground alone, the detention deserves to be set aside. This point is no longer res integra. In the case of T. Devaki Vs. Government of Tamil Nadu and others reported in (1990) 2 Supreme Court Cases 456 it has been held that the act nowhere requires that the Detaining Authority to specify the period for which the detenu is required to be detained. The Honourable Supreme Court has held as under :-
10. Provisions of the aforesaid sections are inbuilt safeguards against the delays that may be caused in considering the representation. If the time frame, as prescribed in the aforesaid provisions is not adhered to, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of detention is confrmed by the State Government, maximum period for which a detenu shall be detained cannot exceed 12 months from the date of detention. The Act nowhere requires the detaining authority to specify the period for which the detenu is required to be detained. The expression "the State Government are satisfed that it is necessary so to do, they may, by order in writing direct that during such period as may be specifed in the order"
occurring in sub-section (2) of Section 3 relates to the period for which the order of delegation issued by the State Government is to remain in force and it has no relevance to the period of detention. The legislature ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt has taken care to entrust the power of detention to the State Government; as the detention without trial is a serious encroachment on the fundamental right of a citizen, it has taken further care to avoid a blanket delegation of power, to subordinate authorities for an indefnite period by providing that the delegation in the initial instance will not exceed a period of three months and it shall be specifed in the order of delegation. But if the State Government on consideration of the situation fnds it necessary, it may again delegate the power of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months. The period as mentioned in Section 3(2) of the Act refers to the period of delegation and it has no relevance at all to the period for which a person may be detained. Since the Act does not require the detaining authority to specify the period for which a detenu is required to be detained, order of detention is not rendered invalid or illegal in the absence of such specifcation.
From the aforesaid judgment of the Honourable Supreme Court, it is clear that absence of period of detention will not render the order of detention illegal. The submission in this regard, therefore, cannot be accepted.
32. It is, thus, clear that the Detaining Authority made no error in ordering detention of the petitioner. Several offences under Arms Act have been registered against the petitioner. A case under Section 302 of the Indian Penal Code is also pending against him. ::: Uploaded on - 16/03/2021 ::: Downloaded on - 31/08/2021 18:33:42 :::
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criwp1587.20.odt The petitioner was externed from Beed District for a period of six months. He committed breach of that order and entered Beed District and not only that, he is alleged to have opened fre from a country-made pistol. This clearly shows that the activities of the petitioner are prejudicial to the maintenance of public order. Therefore, we do not fnd any error in order of detention. The petition is, therefore, devoid of any substance hence it is dismissed.
( M. G. SEWLIKAR ) ( V. K. JADHAV )
Judge Judge
dyb
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