Bombay High Court
Shri Sushant Vasant Salunkhe @ ... vs The Commissioner Of Police And Ors on 24 April, 2015
Author: A.S. Gadkari
Bench: B.R. Gavai, A.S. Gadkari
1
WP.611-2015.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 611 OF 2015
Shri Sushant Vasant Salunkhe @ Kalakhatta
Age 24, residing at Room No.6/11/19, Lane
No.19, G-Ward, Mahatma Gandhi Memorial
Colony, Sewree, Mumbai-400 012. ..Petitioner (Detenu)
(At present lodged at Thane
Central Prison, Thane).
Vs.
1. The Commissioner of Police
Greater Mumbai.
2. The State of Maharashtra
(Through Addl. Chief Secretary to
Government of Maharashtra,
Home Department, Mantralaya, Mumbai).
3. The Superintendent
Nashik Road Central Prison, Nashik. ...Respondents.
-----
Mr. Udaynath Tripathi for Petitioner.
Mr. J.P. Yagnik, APP for Respondent-State.
----
CORAM: B.R. GAVAI &
A.S. GADKARI, JJ.
DATE : 24th April 2015.
JUDGMENT (Per A.S. Gadkari, J.):
1 The present petition under Article 226 of the Constitution of ::: Downloaded on - 07/05/2015 21:01:01 ::: 2 WP.611-2015.sxw India has been filed by the Detenu for quashing and setting aside the order of detention dated 20th January 2015 bearing D.O. No.01/PCB/DP/Zone-
IV/2015 passed by the Respondent No.1 in exercise of the powers under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No.LV of 1981), (Amendment-1996), (Amendment-2009) (for short MPDA Act), with a view to prevent from acting in any manner prejudicial to the maintenance of public order thereby directing him to be detained under the provisions of the said Act.
2 We have heard Mr. Udaynath Tripathi, the learned Counsel appearing for the Petitioner/Detenu and Shri J.P. Yagnik, the learned APP appearing for the Respondents at the length. We have also perused the original record produced by the learned APP during the course of the hearing of the present petition.
3 Apart from the previous criminal history at the discredit of the Petitioner and from the grounds of detention supplied to the Detenu it is apparent that, the Detenu/Petitioner is accused in C.R. No.121 of 2014 under Sections 323, 324, 326, 307, 504, 506(ii) read with Section 34 of the ::: Downloaded on - 07/05/2015 21:01:01 ::: 3 WP.611-2015.sxw Indian Penal Code and under Section 37(1) and 135 of the Bombay Police Act registered at R.A. Kidwai Marg Police Station and in C.R. No.265 of 2014 under Section 188 of Indian Penal code read with Section 42, 45(12) of Jail Act, 1894 registered at N.M. Joshi Marg Police Station. In C.R. No.121 of 2014 dated 12th June 2014, the Petitioner was arrested on 2nd July 2014 and was released on bail by the learned Sessions Court, Mumbai by its order dated 12th September 2014.
Besides the aforesaid two criminal cases in which the Detenu is one of the accused, from the grounds of the detention it also transpires that after bail was granted to the Detenu on 12 th September 2014 and the Petitioner availed bail facility on 15th September 2014, two in-camera statements of the witnesses at 'A' and 'B' were recorded by the Senior Inspector of Police of R.A. Kidwai Marg Police Station on 5 th November 2014 and 7th November 2014 respectively for the incidents which took place prior to it. The said two in-camera statements have been verified by the Assistant Commissioner of Police, Matunga Division, Mumbai. The detaining authority has claimed privilege in public interest of not disclosing the names of the witnesses whose statements were recorded in-camera. On the basis of the material which was available with the sponsoring authority, the same was placed before the detaining authority i.e. Respondent No.1 ::: Downloaded on - 07/05/2015 21:01:01 ::: 4 WP.611-2015.sxw and after being subjectively satisfied about the necessity to detain the Petitioner with a view to prevent him from acting in any manner pre-
judicial to the maintenance of public order, the detaining authority i.e. Respondent No.1 issued the impugned Detention order dated 20th January 2015. The detention order along with the grounds of detention was executed and served upon the Detenu on 27th January 2015 and the Detenu/Petitioner has been detained at the Nashik Road Central Prison.
4After the receipt of notice of the present petition, the State of Maharashtra i.e. Respondent No.2 through Sunil Jaikumar Sovitkar, Deputy Secretary, Government of Maharashtra has filed detailed affidavit dated 18th March 2015 thereby dealing with ground no.5(h) of the petition which is pertaining to the representation made by the Petitioner and its decision by the Respondent No.2. The detaining authority i.e. Respondent No.1 has also filed a detailed affidavit-in-reply dated 4 th April 2015 opposing the petition. In response to the amended ground no.5(j) of the petition, the Respondent No.1 i.e. detaining authority has filed a detailed additional affidavit dated 17th April 2015 thereby dealing with the said ground.
::: Downloaded on - 07/05/2015 21:01:01 ::: 5WP.611-2015.sxw 5 While challenging the impugned order of detention dated 20th January 2015 though the Petitioner has raised several other grounds in the body of the petition, the learned Counsel appearing for the Petitioner restricted his grounds of challenge to ground nos.5(a), (d), (g) and (j) of the Petition. The other grounds raised in the petition are either interrelated or overlapping to these two main grounds. After taking leave of this Court on 10th April 2015, the Petitioner added ground no.5(j) to the present petition by way of amendment. We hereinbelow in seriatim will deal with the grounds raised by the Petitioner while assailing the order of detention dated 20th January 2015.
6 The Petitioner has firstly taken ground no.5(a) in the petition.
He has contended that the detaining authority has failed to records its subjective satisfaction of the truthfulness of the in-camera statements as recorded in the grounds of detention and thus has vitiated the subjective satisfaction of the detaining authority. It is further contended that the order of detention is illegal and bad in law for non recording the subjective satisfaction of the detaining authority which is a mandatory requirement of law and therefore the order of detention is liable to be quashed and set aside.
::: Downloaded on - 07/05/2015 21:01:01 ::: 6WP.611-2015.sxw 7 In support of his contention, the learned Counsel for the Petitioner has relied upon the judgment of this Court reported in 2001 ALL MR (Cri) 48 in the case of Smt. Vidya Raju Gupta Vs. Shri R.H. Mendonca & Ors., and in particular paragraph-6 of the said judgment. The necessary and relevant excerpts from the said paragraph-6 are reproduced herein-below for the sake of brevity and convenience:
"6. There remains no dbout in the light of the law laid down by the Apex Court that in camera statement of person/sitness can be utilised by the detaining authority for the purpoe of arriving at subjective satisfaction for passing the order of detention.
However, the Apex Court made it clear that the facts stated in the materials relied upon should be true and have a reasonable nexus with the purpose for which the order is passed. Necessary corollary, therefore is that the detaining authority must be satisfied about the truthfulness of the statements made in the in-camera statements. Testing it from this touch stone, we find that neither in the detention order nor in the grounds of detention, the detaining authority has stated anything that he was satisfied about the truthfulness of the statements made in the in-camera statements. ................
The English translation of the verification made by the Assistant Commissioner of Police below the in camera statements reads, 'my statement was translated to me in Hindi which is in accordance with what I stated". This means that the Assistant Commissioner of Police has only verified that the statement made by the witness was recorded as actually made by him. Therefore on the basis of mere verification, without there being something more by way of contemporaneous document of material more over when no such statement is made in the grounds of detention that the statements made in the in camera statement were believed to be true, it is very ::: Downloaded on - 07/05/2015 21:01:01 ::: 7 WP.611-2015.sxw difficult to hold that the detaining authority was in fact subjectively satisfied that the assertions made in camera statements were true. The detaining authority has to apply his mind about the truthfulness of the assertions made in camera statement which in the facts of the present case seems to have not been done which in our opinion vitiates the detention order."
8 The learned APP drew our attention to the affidavit-in-reply filed by the Respondent No.1 and in particular paragraph-6 of the said affidavit which deals with the ground no.5(a) of the petition. The detaining authority has specifically stated that the Assistant Commissioner of Police, Matuna Division has verified the in-camera statements of the witnesses 'A' and 'B' and after reading the in-camera statements and verification effected thereon, the Respondent No.1 was subjectively satisfied about its genuineness and truthfulness and thereafter he proceeded to accept the same as true and correct.
At this stage, it is necessary to place the fact on record that as per our direction the learned APP produced the original in-camera statements in the Court. We have perused the original in-camera statements of the witness 'A' and 'B'. The record further discloses that the Assistant Commissioner of Police, Matuna Division, who is a senior police officer, has in fact verified the two in-camera statements dated 5 th November 2014 ::: Downloaded on - 07/05/2015 21:01:01 ::: 8 WP.611-2015.sxw and 7th November 2014 and has endorsed that he has personally verified the said statements in the presence of the said witnesses and was satisfied that the statements dated 5th November 2014 and 7th November 2014 have been given by the said witnesses. He has further endorsed that the witnesses have requested him to conceal their identity with a fear that the Detenu/Petitioner may after knowing their names take revenge or may retaliate with them. We find no fault with the verification statements recorded by the Assistant Commissioner of Police, Matunga Division, Mumbai. Apart from the aforesaid fact, it is to be noted here that on internal page no.14 of the grounds of detention in ground 5(c), the detaining authority has specifically recorded its subjective satisfaction about the truthfulness and correctness of the in-camera statements.
9 The learned APP in support of his contention and the reply of the detaining authority which has been stated in paragraph-6 of the affidavit-in-reply has relied on the judgment reported in 2014 ALL MR (Cri) 53 in the case of Santosh s/o Bhagwan Patil Vs. The State of Maharashtra & Ors. and in particular on paragraph-23 which reads as under:
"23 Law is settled that if in-camera statement discloses ::: Downloaded on - 07/05/2015 21:01:01 ::: 9 WP.611-2015.sxw verification about truthfulness of such statement and the identity of the person concerned to the satisfaction of the officer verifying the statement, no challenge could be entertained on the ground that the verification was defective."
It is to be noted here that the Division Bench of this Court after referring to and relying upon the judgment in the case of Smt. Vidya Raju Gupta (supra) has come to the conclusion as mentioned in paragraph-23 in the said judgment above stated. It is to be noted here that in the case of Smt. Vidya Raju Gupta (supra), it was observed by the Division Bench that the Assistant Commissioner of Police had only verified that the statement made by the witness was actually made by him and therefore on the basis of mere verification, without there being something more by way of contemporaneous document of material, the detaining authority believed the in camera statement to be true. The Division Bench in that case was therefore of the opinion that, the detaining authority was in fact subjectively satisfied that the assertions made in the in-camera statements were true and therefore it was held that the detention order vitiates.
In the case in hand, the perusal of the original record clearly demonstrates that the Assistant Commissioner of Police, Matunga Division is a senior police officer has in fact verified the statements of the witnesses 'A' and 'B' and has put a detailed endorsement about his satisfaction that ::: Downloaded on - 07/05/2015 21:01:01 ::: 10 WP.611-2015.sxw the original in-camera statement given by the witnesses 'A' and 'B' dated 5 th and 7th November 2014 respectively were genuine and true and therefore we are of the opinion that no fault can be found from the said verification.
We are further of the opinion that the subjective satisfaction arrived at by the detaining authority on the basis of the said verification has been arrived at after properly placing its reliance on the said verification and after getting subjectively satisfied about the assertion made in the said in-camera statements. In our opinion, the proper verification of the statements and the correct subjective satisfaction of the detaining authority does not vitiate the detention order and in fact we are of the opinion that the said ground 5(a) has no substance in it.
10 The learned Counsel appearing for the Petitioner while assailing the detention order and in furtherance of his contention raised in paragraph 5(a) of the petition has submitted that the Respondent No.1 i.e. the Commissioner of Police and the detaining authority must again verify in-
camera statements i.e. he 'must' again call the said witnesses, rerecord the statements and then 'must' arrive to the subjective satisfaction. The said submission of the learned Counsel for the Petitioner is to be recorded only for its rejection at its threshold for the simple reason that if the said ::: Downloaded on - 07/05/2015 21:01:01 ::: 11 WP.611-2015.sxw exercise is again expected to be undertaken by the detaining authority, then the verification effected by the Assistant Commissioner of Police, who is a senior police officer will become a futile and redundant exercise at its first instance and secondly the detaining authority is not at all expected to record the in-camera statements of the witnesses again and again. The contention of the learned Counsel for the Petitioner is far-fetched which according to us would lead to absurdity in the process of verification of the in-camera statements of the witnesses which have already been once verified by the Assistant Commissioner of Police who is a senior police officer in the hierarchy. However, we may note here that the detaining authority is not precluded from undertaking the said exercise or doing so in the exceptional cases where the detaining authority has any doubt about the genuineness or veracity of the in-camera statements already verified before arriving at the subjective satisfaction and formulating the grounds of detention.
11 The learned Counsel appearing for the Petitioner then assailed the detention order by pressing into service the ground no. 5(d) of the petition. The learned Counsel contended that the detaining authority has referred to and relied on criminal case vide C.R. No.265 of 2014 under ::: Downloaded on - 07/05/2015 21:01:01 ::: 12 WP.611-2015.sxw Section 188 of Indian Penal code read with Section 42, 45(12) of Jail Act, 1894 for arriving at his satisfaction that the Petitioner is a "dangerous person" while passing the order of detention. He further contended that the said crime do not fall under Chapter XVI or XVII of the Indian Penal Code and the detaining authority has taken into consideration the irrelevant and extraneous material while exercising its power under Section 3(2) of MPDA Act, and therefore, the subjective satisfaction of the detaining authority stands vitiated which leads the order of detention as illegal and bad in law. It is further contended that this shows total non-application of mind of the detaining authority. The learned Counsel for the Petitioner in support of his contention relied upon two judgments reported in (1) (1989) 4 SCC 43 in the case of Abdul Razak Nannekhan Pathan Vs. Police Commissioner, Ahmedabad & Anr., in particular paragraph-10 of the said judgment; and (2) 2004 CRI L.J. 4639 in the case of Madhu Garg Vs. Union of India & Anr., in particular paragraph-20 of the same.
12 The detaining authority in his affidavit-in-reply has specifically stated that the said case i.e. C.R. No.265 of 2014 under Section 188 of Indian Penal code read with Section 42, 45(12) of Jail Act had occurred inside the jail when the Petitioner was remanded to judicial custody in ::: Downloaded on - 07/05/2015 21:01:01 ::: 13 WP.611-2015.sxw connection with the above quoted first C.R. No.121 of 2014. It has been specifically stated that though the Sections in C.R. No.265 of 2014 are not envisage in Chapter XVI and XVII of the Indian Penal Code, the same is mentioned in the grounds of detention for showing that even though the Petitioner was in jail, he continued his illegal activities.
We find substance in the contention of the detaining authority.
Though the said C.R. No.265 of 2014 do not fall within the purview of Chapter XVI and XVII of the Indian Penal Code, the registration of the said C.R. No.265 of 2014 undoubtedly shows the propensity of the Petitioner towards criminality which can be a ground to be taken into consideration while invoking the provisions of MPDA Act. It is settled position of law that the provisions of MPDA Act can be invoked in a situation wherein there is one crime registered against the Detenu under Chapter XVI and XVII of the Indian Penal Code and there are witnesses who are not willing to come forward to depose against him openly with a fear of revenge and with a view to prevent such a person from acting in any manner prejudicial to the maintenance of public order. Therefore we do not find any substance in the contention of the Petitioner.
13 The Hon'ble Supreme Court, in the case of Abdul Razak ::: Downloaded on - 07/05/2015 21:01:01 ::: 14 WP.611-2015.sxw Nannekhan Pathan relied upon by the Petitioner, had come to the conclusion that the Petitioner therein was acquitted from the cases which could not have been taken into consideration by the detaining authority and therefore the subjective satisfaction of the detaining authority was vitiated.
It has been further held by the Apex Court in the said case that the statements of the witnesses were vague which were not sufficient to come to the conclusion that the Detenue was coming in the way of maintenance of public order. It has been further held by the Supreme Court that the grounds and the averments made in the grounds which were served on the Detenu are vague and as such they are violative of the Article 22(5) of the Constitution of India.
14 In the second judgment relied upon by the learned Counsel for the Petitioner in the case of Madhu Garg (supra), the Supreme Court in paragraph-20 has held that, it is now well-settled that when one of the grounds of detention is found to be based on irrelevant materials not germane for passing the order of detention, the entire order of detention shall stand vitiated in law.
The learned APP on the other hand relied on the judgment reported in (2004) 8 SCC 591 in the case of State of U.P. & Anr. Vs. ::: Downloaded on - 07/05/2015 21:01:01 ::: 15 WP.611-2015.sxw Sanjai Pratap Gupta alias Pappu & Ors., and in particular paragraph-17 therein. The Supreme Court in the said judgment was dealing with the provisions of Section 5-A of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA Act") and the Supreme Court has held that Section 5-A of the said Act was introduced to take care of the situations when one or more of the grounds can be separated from the other grounds for justifying detention. It is to be noted here that the provisions of Section 5-A of COFEPOSA Act is parimateria with Section 5-A of MPDA Act.
15 Section 5-A of the MPDA Act was inserted in the statute by the amendment in the year 1988. Section 5-A deals with the grounds of detention which can be severable. The said Section 5-A states that where the person has been in pursuance an order of detention under Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly, such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non existence, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever and it is not, therefore, possible ::: Downloaded on - 07/05/2015 21:01:01 ::: 16 WP.611-2015.sxw to hold that the State government or officer mentioned in sub-section (2) of Section 3 making such order would have been satisfied as provided in Section 3 with reference to the remaining grounds or ground and made the order of detention. The said Section further provides that the State Government or such officer making the order of detention shall be deemed to have made the order of detention under the said Section 3 after being satisfied as provided in that Section with reference to remaining grounds or ground. Thus, it is abundantly clear that the Section 5-A of the Act itself in unambiguous terms provides that the grounds of detention with respect to a Detenu are severable.
Hence, the contention of the Petitioner that the detaining authority has taken into consideration the crime which do not fall within the purview of Chapter XVI or XVII of the Indian Penal Code, and therefore, order of detention stands vitiated does not hold any substance in it. It will not be out of way to place the facts on record that after taking into consideration the nature of the C.R. No.121 of 2014 and in-camera statements of the witnesses 'A' and 'B', in our considered opinion the Petitioner undoubtedly falls within the purview of the Section 2(b-1) of the MPDA Act as a "dangerous person" and according to us the detaining authority has not committed any error while formulating the ground of ::: Downloaded on - 07/05/2015 21:01:01 ::: 17 WP.611-2015.sxw detention and in particular ground no.6.
In the present case, there are other grounds also which have been taken into consideration by the detaining authority for issuing the detention order of the Detenu and in our considered opinion the said grounds are certainly serverable from one another. In our considered opinion the second C.R. No.265 of 2014 has been taken into account by the detaining authority only for the purpose of showing the propensity of the criminality of the Detenu/Petitioner, who even while in judicial custody i.e. in jail, continued to indulge into criminal activities and therefore we are of the firm opinion that the same does not vitiates the subjective satisfaction of the detaining authority. We are therefore of the view that there is no substance in the contention/submissions of the learned Counsel for the Petitioner and the said contention which is raised in the ground no.5(d) is accordingly rejected.
16 The learned Counsel appearing for the Petitioner then pressed into service the ground 5(g) of the petition. In ground 5(g) of the petition, the Petitioner has contended that, in paragraph-5 (a)(xi) of the grounds of detention, it is stated that the Chemical Analyzer report from Forensic Science Laboratory, Kalina is awaited and without obtaining a copy of the ::: Downloaded on - 07/05/2015 21:01:01 ::: 18 WP.611-2015.sxw Chemical Analyser's report which is an experts opinion, the detaining authority cannot come to a conclusion about the genuineness and authenticity of the material used in the offence committed. It is further contended that the Chemical Analyser's report is a vital document and non-
placement of the same before the detaining authority, vitiates the subjective satisfaction of the detaining authority.
A bare perusal of the grounds of detention would reveal that the detaining authority was conscious of the fact that the Chemical Analyser's report in C.R. no.121 of 2014 was not received from the Government Forensic Science Laboratory, Kalina, Mumbai and the same was awaited.
The detaining authority in response to ground no.5(g) of the petition in his affidavit-in-reply at paragraph-12 has stated that injured person's clothes, knife, blood sample were sent to Chemical Analyser to the Government Forensic Science Laboratory, Kalina, Mumbai 11th July 2014 and its report is awaited. It is further stated that in a case where all the material including the FIR, statements of witnesses, Panchanamas of place, recovery, seizure etc. point out the genuineness and authenticity of the involvement of the Detenu, particularly for initiating preventive action, waiting to receive Chemical Analyser's report is not warranted and necessary. The detaining authority has further stated, however, that non-placement of report does not ::: Downloaded on - 07/05/2015 21:01:01 ::: 19 WP.611-2015.sxw vitiates its subjective satisfaction being the detaining authority while issuing the detention order.
The learned Counsel for the Petitioner in support of his contention stated that the Chemical Analyser's report is a vital document and detaining authority should wait till its receipt from the FSL. He relied on three authorities in support of his contention.
(i) The first decision relied upon by the learned Counsel for the Petitioner is reported in ig 2005 SCC (Cri) 882 in the case of District Collector, Ananthapur Vs. V. Laxmana. Paragraph-7 of the said judgment thus read as under:
"7. We do not think that this argument of the learned counsel can be accepted. If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of arrack then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Excise Act but if the arrack sold by the detenu is dangerous to public health then under the Act, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to it that the arrack dealt with by the detenu is an arrack which is dangerous to public health to attract the provisions of the Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation."
Plain reading of the said paragraph, would reveal that the ::: Downloaded on - 07/05/2015 21:01:01 ::: 20 WP.611-2015.sxw Supreme Court was considering a case wherein the Respondent was indulging into the activities of manufacturing or transport of sale of illicit liquor (arrack) and with a view to ascertain the fact that the Chemical/liquid which was seized by the Investigating Agency which was in fact arrack or not, the Chemical Analyser's report was found to be necessary. The case in hand stands on totally different footing, wherein the injured victim has stated that the Detenu/Petitioner has assaulted him with a knife and other witnesses have corroborated the same and therefore the aforesaid decision cited by the learned Counsel for the Petitioner is of no help to him.
(ii) The second authority cited by the learned Counsel for the Petitioner is reported in 2004 CRI L.J. 4639 in the case of Madhu Garg Vs. Union of India & Anr. At the outset, it is to be observed that the said decision is also of no help to the Petitioner as in the said case, it was not in dispute that one of the allegations made against the Detenu on the grounds of detention was that he had exported consignment upon misdeclaration, to the effect that alloy steel forging (machine) was being exported whereas actually the same was metal scrap. The Supreme Court in paragraph-18 of the said judgment has come to the conclusion that, had the detaining authority waited for the results of the Chemical analysis of the material ::: Downloaded on - 07/05/2015 21:01:01 ::: 21 WP.611-2015.sxw before issuing the impugned order of detention, the first ground stated therein could not have been made a basis therefor. In the said case, as there was dispute about the chemical composition of the material seized, it was imperative on the part of the investigating agency to wait for Chemical Analyser's report. However, in the case in hand the said factor cannot have any bearing and therefore the reliance placed by the Petitioner in the case of Madhu Garg (supra) is totally misplaced.
(iii) The third decision relied upon by the Petitioner is reported in 2003 ALL MR (Cri) 406 in the case of Gobibai Vs. Ghanavat State of Maharashtra & Ors. In the said case also the Detenu was dealing in illicit liquor and therefore the provisions of MPDA Act were invoked against him. The Division Bench of this Court in that context held that the Chemical Analyser's report which was not received by the sponsoring authority till the issuance of order of detention and therefore copy of the same was not furnished to the Detenu, was not acceptable, as the Detenu therein was found to be involved in dealing with the illicit liquor and the Chemical Analyser's report to that effect was necessary. The Division Bench of this Court, however, has further held in paragraph-17 of the said judgment that the detaining authority can arrive at the subjective satisfaction that the Detenu was bootlegger from various facts and ::: Downloaded on - 07/05/2015 21:01:01 ::: 22 WP.611-2015.sxw circumstances on record and need not depend necessarily on the report of the Chemical Analyser with regard to the liquor seized from its possession.
In our opinion, the reliance placed by the Petitioner on the said authority is also totally misplaced.
17 It is to be noted here that, indubitably the Chemical Analyser's report is a vital document. However, its vitality, importance and its relativeness, depends upon the facts and circumstances of each case. It is further to be noted that the vitality of the Chemical Analyser's report depends upon the facts and circumstances of each case while recording subjective satisfaction by the detaining authority. In a given case, which is based on the statements of the injured victim, corroborated with the medical certificate and/or the statements of eye-witnesses, the thrust of "placing the Chemical Analyser's report before the detaining authority" for arriving at its subjective satisfaction assumes least importance. As stated earlier, in a given case the availability or receipt of Chemical Analyser's report makes no difference and the detaining authority cannot be expected to wait for uncertain time, till the Chemical Analyser's report is received from the Forensic Science Laboratory, which would lead to delay in passing the detention order and thereby giving a scope for the proposed ::: Downloaded on - 07/05/2015 21:01:01 ::: 23 WP.611-2015.sxw Detenu to raise a plea of vitiation of the detention order on the ground of delay in issuing the same. As stated earlier, in a given case where the case is based on the statement of the victim/injured eye-witness with corroborative evidence in support thereof, the Chemical Analyser's report of the blood-stains of the victim on his own cloths and/or on the spot of the incident assumes least importance for arriving at the subjective satisfaction by the detaining authority..
In the present case, the C.R. No.121 of 2014 has been lodged by the complainant Nitin Upade who is eye-witness and brother of victim Mangesh Upade. It is a specific case of the prosecution that the Petitioner/Detenu assaulted said Mangesh with a knife thereby causing grievous hurt to him. In such a situation where the case is specifically based on the statements of the eye-witness and injured victim, the non-
placement of the Chemical Analyser's report of the clothes and weapon stained with blood of the victim before the detaining authority will make no difference and in our considered opinion the subjective satisfaction arrived at by the detaining authority does not at all vitiate on the said ground. Therefore, the contention of the Petitioner that as the Chemical Analyser's report in present case was not placed before the detaining authority, vitiates the detention order, does not in our considered view has ::: Downloaded on - 07/05/2015 21:01:01 ::: 24 WP.611-2015.sxw any substance in it.
18 The learned Counsel for the Petitioner lastly press into service the ground no.5(j) of the petition, wherein it is contended that the C.R. No.121 of 2014 occurred on 12th June 2014, the in-camera statements of the witness 'A'was recorded on 5th November 2014 for the incident of May 2014 and statements of the witness 'B' recorded on 7 th November 2014 for the incident which took place in the first week of June 2014. However, the detaining authority passed the impugned detention order belatedly on 20 th January 2015 thereby causing a gross delay in submitting proposal as well as passing the order of detention and because of the same, order of detention vitiates. He further contended that there in inordinate delay of about four-months in passing the present detention order from the date of recording of the in-camera statements which is hit on the ground of delay.
The learned Counsel for the Petitioner in support of his contention has relied upon the decision of the Supreme Court reported in AIR 1994 SC 656 in the case of Pradeep Nilkanth Paturkar Vs. S. Ramamurthi and in particular paragraph no.13 of the said decision. In the said decision, the Supreme Court came to the conclusion that the detention order therein was passed after completion of five-months and eight days ::: Downloaded on - 07/05/2015 21:01:01 ::: 25 WP.611-2015.sxw from the date of registration of the last case and more than four months from the submission of the proposal and therefore came to be conclusion that, taking into consideration the unexplained delay the detention order therein was not found to be justifiable and the same was quashed. In the additional affidavit-in-reply dated 17.4.2015, the detaining authority in detail has stated about the movement of proposal by the sponsoring authority. It is to be noted here that the said two in-camera statements of the witnesses 'A' and 'B' have been recorded on 5.11.2014 and 7.11.2014 respectively and thereafter the order of detention came to be passed on 20.1.2015. The detaining authority in detail has explained about the movement of the files from various authorities while processing the proposal of detention submitted by the sponsoring authority. It appears to us that after the recording of the in-camera statements of the witness 'B' on 7.11.2014, the detention order has been passed within approximately two months and 13 days. A bare perusal of the reply filed by the detaining authority in response to ground 5(j) makes it abundantly clear that the subordinate officers of the detaining authority were processing the proposal, and time gap of about two months and thirteen days has been satisfactorily explained by the detaining authority in the said affidavit.
::: Downloaded on - 07/05/2015 21:01:01 ::: 26WP.611-2015.sxw 19 The learned APP in support of his contention that the principles in passing the detention order and considering the representation made by the Detenu after execution of the detention order operate in different sphere and the principles which are necessitated for considering the application under Article 22 of the Constitution of India cannot be equated with the issuance of detention order. The learned APP in support of his contention placed reliance on two authorities namely (i) reported in (2006) 7 SCC 560 in the case of Sheetal Manoj Gore Vs. State of Maharashtra and (ii) reported in (2013) 4 SCC 435 in the case of Abdul Nasar Adam Ismail Vs. State of Maharashtra.
In paragraph 7 of the judgment in the case of Sheetal Manoj Gore (supra), the Supreme Court observed as under:
"Moreover, the time taken in completing the process for issuance of order of detention has not to be tested applying the same standard as is applied in the matter of consideration of representation of a detenu. This Court in several judgments has emphasized the promptness with which the authority concerned must deal with representation received from the detenu. The right to represent and its fair and prompt consideration by the authority concerned is a constitutional right guaranteed to a detenu. The authorities dealing with such representation must be aware of the fact that the detenu is languishing in custody without a trial. Their conduct must, therefore, disclose a consciousness of the urgency in the matter. The norms and standards laid down by this Court in the matter of consideration of the representation of a detenu, cannot be strictly applied to the case of processing of a proposal for detention of a person ::: Downloaded on - 07/05/2015 21:01:01 ::: 27 WP.611-2015.sxw under the Act. No doubt, if there is inordinate delay in issuing the order of detention, it may well be argued that the live link between the prejudicial activity of the detenu and the purpose for which the order of detention is issued is snapped, and being stale there was no justification for issuance of an order of detention."
In paragraph 13 of the judgment in the case of Abdul Nasar Adam Ismail (supra), the Supreme Court observed as under:
"13 We have carefully perused the affidavit of the detaining authority. The detaining authority has stated what steps were taken and how the proposal submitted by the sponsoring authority was processed till the detention order was passed. The sponsoring authority has also filed affidavit explaining steps taken by it till the proposal was submitted. The High Court has rightly held that the said explanation is satisfactory. In this connection, reliance placed by the High Court on the judgment of this Court in Rejendrakumar Natvarlal Shah V. State of Gujrat [(1998) 3 SCC 153:1988 SCC (Cri) 575 is apt. We deem it appropriate to quote the relevant paragraph: (SCC pp.162-63, para 10).
"10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn btween the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and ::: Downloaded on - 07/05/2015 21:01:01 ::: 28 WP.611-2015.sxw thereby to the security of the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin V. Union of India [1987 Cri LJ 1632 (Del)], Bhupinder Singh v. Union of India [(1985) 28 DLT 493, Anwar Esmail Aibani v. Union of India [Criminal Writ No.375 of 1986 decided on 11-12-1986(Del)], Surinder Pal Singh v.
M.L. Wadhwan [Criminal Writ no.444 of 1986 decided on 9-3- 1987(Del)] and Ramesh v. Delhi Admn.[Criminal Writ No.43 of 1984 decided on 16-4-1984 (Del) and other cases taking the same view do not lay down good law and are accordingly overruled."
20 Thus, from the ratio laid down by the Supreme Court in the above decisions, it is clear that, the time taken in completing the process for issuance of order of detention cannot to be tested by applying the same standard as is applied in the matter of consideration of representation of a detenu under Article 22(5) of the Constitution of India. In the facts and circumstances of the present case, we are satisfied that the details furnished by the detaining authority in its additional affidavit provide sufficient explanation for time taken in issuance of order of detention. We are satisfied that there was no delay on the part of the authorities in taking ::: Downloaded on - 07/05/2015 21:01:01 ::: 29 WP.611-2015.sxw necessary steps in connection with the issuance of order of detention. We are also satisfied that the detaining authority was conscious of the fact that the matter require immediate attention. In view of fact that the various steps which are required to be taken by the detaining authority before issuance of order of detention, the order could not be issued earlier. We, therefore, find no merit in the contention of the Petitioner that there was a delay in issuing the order of detention after recording in-camera statements of the witnesses 'A' and 'B'.
21 After taking into consideration the entire material available on record, we find no merits in any of the contentions urged before us. The Writ Petition being devoid of merits, is dismissed accordingly.
(A.S. GADKARI, J.) (B.R. GAVAI, J.)
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