Bombay High Court
* Adil Chaus S/O Hamad Chaus vs The Commissioner Of Police on 16 February, 2012
Author: Naresh H Patil
Bench: Naresh H Patil, T.V. Nalawade
1 Cr.W.P. 885 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.885 of 2011
* Adil Chaus s/o Hamad Chaus, )
Age 21 years, )
Residing at Chaus Colony, )
Shahbazar, Aurangabad. ) .. Petitioner.
Versus
1) The Commissioner of Police, )
Aurangabad. )
ig )
2) The State of Maharashtra )
Through the Secretary, )
Preventive Detention, )
Home Department (Special) )
Mantralaya, Mumbai 400 032. )
)
3) The Superintendent of Prison )
Aurangabad Central Prison, )
Aurangabad. ) .. Respondents.
--------
Shri. U.N. Tripathi, Advocate for petitioner.
Smt. V.A. Shinde, Assistant Government Pleader, for
respondent Nos.1 to 3.
--------
CORAM: NARESH H PATIL &
T.V. NALAWADE, JJ.
Judgment reserved on : 09th February 2012
Judgment pronounced on: 16th February 2012.
JUDGMENT :(Per Naresh H Patil, J.)
1) Heard.
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2) Rule returnable forthwith. Heard finally by consent.
3) The petitioner challenges order of detention passed on 30-8-2011 by the Commissioner of Police Aurangabad under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 (for short, "MPDA Act, 1981").
4) By an order dated 30-8-2011 the petitioner was detained under the MPDA Act 1981 in exercise of powers conferred by sub section (1) of Section 3 of the said Act.
In pursuance of Section 8 of the MPDA Act, 1981 the Commissioner of Police Aurangabad communicated the grounds on which the detention order was passed. The grounds of detention order are mentioned in para 4 and 5 of the Grounds of Detention (Exhibit B). In ground No.4 instances are mentioned which are reproduced as under :
i) On 2-8-2010 at about 16.00 hours, you were found in Aurangabad City by disobeying the directions given in externment order that not to enter into Aurangabad City, Aurangabad district and Jalna district by the Deputy Commissioner of Police, Zone, Aurangabad, vide its order No.11/2262/2009 dated 20-5-2009. At that time you along with your associate Sachin Chandrakant ::: Downloaded on - 09/06/2013 18:11:49 :::
3 Cr.W.P. 885 of 2011 Tribhuwan were found in your house. In search, one sword and two knives were seized from your house; one Honda motorcycle was also found in your possession. During the course of investigation, it was revealed that offences were committed by you in the Aurangabad city by using bogus number plate on the said motor cycle. In this connection an offence vide C.R.No.180/2010 U/s 468, 471, 420, 34 IPC, 7, 27 Arms Act and 142 Bombay Police Act was registered against you and your associate at Police Station City Chowk, Aurangabad. You were arrested on 2-8-2010 and P.C.R. was granted till 4-8-2010 and thereafter you were sent in M.C.R. and lodged in Central Prison Aurangabad. On 26-10-2010 you were released on bail. After due investigation, the charge sheet was filed against you in the 14th J.M.F.C. Court Aurangabad and now the said case is pending trial in the Court of Law.
ii) On 7-12-2010 at about 20.30 hrs, you along with your three associates accosted the complainant Meer Haidar Ali in the area of Shahbazar and by threatening at the point of knife you demanded money. Thereafter, when complainant refused your demand, you assaulted him by knife and forcibly tried to rob him. In this connection an offence vide C.R.No.316/2010 U/s 397, 341, 323, 504, 506, 34 IPC was registered against you at Police Station City Chowk, Aurangabad. Since, registration of the said offence you were absconding till 9-7-2011 to avoid arrest in the said offence. On 9-7-2011 you were arrested and PCR was granted till 14-7-2011.
Thereafter you were sent in MCR and lodged in Central Prison Aurangabad. Now, the said case is under investigation.
iii) On 18-1-2011 complainant Shri. Sikander Khan Nazir Khan filed complaint that on 18-1-2011 at about 00.30 hrs. you along with your two of associates confined the complainant and demanded money for drinking liquor and abused him. Thereafter, you assaulted the complainant by knife and ::: Downloaded on - 09/06/2013 18:11:49 ::: 4 Cr.W.P. 885 of 2011 injured him. In this connection an offence vide C.R.No.18/2011 U/s 307, 323, 504, 34 IPC was registered at Police Station City Chowk against you and your associates. On 14-7-2011 you were arrested and PCR was granted till 17-7-2011. Thereafter you were sent in MCR and lodged in Central Prison Aurangabad. After due investigation, the charge sheet was filed against you in the 14th J.M.F.C. Court Aurangabad and the said case is pending trial in the Court of Law.
iv) On 1-7-2011 at about 21.40 hrs. when P.S.I. Sunil Lahane along with Police staff of Police Station Begampura was on patrolling in the jurisdiction of Police station Begampura, they received an information that some armed persons were roaming in the area of Asefiya Colony near Himayat Bag. On receipt of the said information PSI Sunil Lahane along with staff reached the place and you along with your six associates arrested from the spot. In search; rope, sword, knife, fighter, chilly power, stick were found in you and your associate's possession of which is used in committing dacoits. In this connection an offence vice C.R. No.93/2011 U/s 399 of IPC, 4, 25 of Arms Act & 135 of Bombay Police Act was registered against you and your associates at Police Station Begampura, Aurangabad. On 1-7-2011 you along with your associates were arrested and PCR was granted till 8-7-2011.
Thereafter you were sent in MCR and lodged in Central Prison Aurangabad. Now the said case is under investigation.
5) In ground No.5 the Commissioner of Police has placed reliance on the statements recorded "in camera"
by Police Inspector of Police Station City Chowk Aurangabad which were verified by DCP Zone 1, Shri. Somnath Gharge. There are four statements of witnesses ::: Downloaded on - 09/06/2013 18:11:49 :::
5 Cr.W.P. 885 of 2011 who are described as Witness "A", "B", "C" and "D". The Commissioner of Police, from the facts of the case and the material produced, was subjectively satisfied that with a view to prevent the petitioner from acting in prejudicial manner and to maintain public order it was necessary to detain him.
6) In igthe affidavit-in-reply filed by the Commissioner of Police, Shri. Sanjay Kumar S/o Dr. Krishnadev Prasad Yadav, it is submitted that, the detention order has been approved by the State Government vide order dated 6-9-2011. The petitioner made representation to the Advisory Board constituted under the said Act. The petitioner was heard by the Advisory Board on 1-10-2011. After receipt of the opinion from the Advisory Board the detention order has been confirmed by the State Government vide its order dated 10-10-2011.
7) The learned counsel Shri. Tripathi, appearing for the petitioner pressed following grounds for setting aside the detention order :-
::: Downloaded on - 09/06/2013 18:11:50 :::6 Cr.W.P. 885 of 2011 (1) There was no material placed before the Commissioner of Police in respect of bail applications filed by the petitioner pending in respect of three C.R. so as to reach conclusion that the petitioner was likely to be released on bail in these cases;
(2) Verification made by the officer concerned below "in camera" statements did not show satisfaction of the authority in respect of truthfulness of such statements;
(3) The petitioner was not knowing Marathi language. The petitioner was knowing Urdu language so the material documents ought to have been supplied by translating the same in Urdu language.
(4) There was non application of mind on the part of the Commissioner of Police in detaining the petitioner.
8) In respect of pending bail applications it was submitted by the counsel that, there were three crimes bearing CR Nos.316/10, 18/2011 and 93/2011. In CR No. 316/2010 bail was granted on 26-8-2011. In CR No. 18/2011 bail was granted by the trial Court on 29-8-2011 while in CR No.93/2011 bail application was pending and the bail was granted by the trial Court on 3rd September 2011 when the petitioner was in detention. It was submitted that, the material in respect of the pending bail applications was not provided to the petitioner neither the ::: Downloaded on - 09/06/2013 18:11:50 ::: 7 Cr.W.P. 885 of 2011 bail applications, CRs, statements of accused were provided by the detaining authority.
9) In respect of verification of 'in-camera' statements, the learned counsel submitted that the verification made by the authority concerned does not show its personal satisfaction in respect of the statements made. The concerned officer ought to have verified the truthfulness and genuineness of the statements recorded in camera. In absence thereof, the order of detention gets vitiated.
10) As regards supply of documents in Marathi language to the detenu the learned counsel submitted that, the detenu is a Muslim by religion and he knows only Urdu language. He does not understand Marathi language, therefore, non supply of documents in Urdu language has caused prejudice to the petitioner. Though the petitioner had one of the subjects as Marathi in his school education which does not establish that the petitioner knows Marathi language.
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11) It was submitted that the offences narrated in Ground No.4 do not provide any justification for detaining the petitioner under the MPDA Act 1981. There was no sufficient material before the Commissioner of Police to reach subjective satisfaction that the activities of the petitioner were so dangerous that it affected public order.
The offences for which the petitioner was charged could have been dealt with under the proceedings of regular law. The allegations made against the petitioner were not of that grave nature so as to detain the petitioner. In support of the submissions the learned counsel has referred to following case law.
(1) Rekha v. State of Tamil Nadu, (2011) 5 SCC 244.
Paragraphs 29 and 30 read thus :
"29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was own after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.::: Downloaded on - 09/06/2013 18:11:50 :::
9 Cr.W.P. 885 of 2011
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal"
(2)Shabbirbhai Bookwala v. The State of Maharashtra, 2011 ALL MR (Cri) 2553. Paragraph 6 reads thus :
"6. It is well settled that the procedure as laid down under Article 22 of the Constitution must be strictly observed in the cases of preventive detention and the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been a strict compliance with the requirements of law. The Supreme Court in the case of Makhan Singh Vs. State of Punjab [AIR 1952 SC 27] held that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage the person affected. The onus to show that the liberty of the detenu has been taken away in accordance with the procedure established by law is on the State i.e. the Detaining Authority who must show that the liberty of the detenu has been taken away in accordance with the procedure established by law and the safeguards provided in Article 22 as well as in the Act under which the detention order has been passed. In the case of Ram Bali Rajbhar Vs. State of West Bengal [AIR 1975 SC 623] the Supreme Court held that on a habeas corpus petition, what has to be considered by the Court is whether the ::: Downloaded on - 09/06/2013 18:11:50 ::: 10 Cr.W.P. 885 of 2011 detention is prima facie legal or not, and not whether the detaining authorities have wrongly or rightly reached a satisfaction on every question of fact. Courts have, no doubt, to zealously guard the personal liberty of the citizen and to ensure that the case of a detenu is justly and impartially considered and dealt with by the detaining authorities and the Advisory Board. But, this does not mean that they have to or can rightly and properly assume either the duties cast upon the detaining authorities and Advisory Board by the law of preventive detention or function as courts of appeal on questions of fact. "
(3) Union of India v. Paul Manickam, (2003) 8 SCC
342. Para 14 reads thus :
"14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent ::: Downloaded on - 09/06/2013 18:11:50 ::: 11 Cr.W.P. 885 of 2011 him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated (See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.). The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows : even in the case of a person in custody, a detention order can be validly passed : (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.
(4) Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, Commissioner of Police, (1989) 2 SCC 222. Para 24 reads thus :
"24. On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988. It is also not disputed that thereafter no application for bail was made for release of the detenu before the ::: Downloaded on - 09/06/2013 18:11:50 ::: 12 Cr.W.P. 885 of 2011 order of detention was served on him on May 23, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also". This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail was non-existent. This fact of non- awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials. There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfaction that the detenu, if released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative."
(5) A simple copy of the Apex Court judgment in Yumman Ongbi Lembi Leima v. State of Manipur, Para 13 reads thus :
"13. Having carefully considered the submissions made on behalf of respective parties, we are inclined to hold that the extra-ordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. Article 21 of the Constitution enjoins that no person shall be deprived of his life or personal liberty except, according to procedure ::: Downloaded on - 09/06/2013 18:11:50 ::: 13 Cr.W.P. 885 of 2011 established by law. In the instant case, although the power is vested with the concerned authorities, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution."
(6) Phulwari Jagdambaprasad Pathak v. R.H. Mendonca, (2000) 6 SCC 751. Para 16 reads thus :
"16. Then comes the crucial question whether "in-camera" statements of persons/witnesses can be utilized for the purpose of arriving at subjective satisfaction of the detaining authority for passing the order of detention. Our attention has not been drawn to any provision of the Act which expressly or impliedly lays down the type of material which can form the basis of a detention order under Section 3 of the Act. Preventive detention measure is harsh, but it becomes necessary in the larger interest of society. It is in the nature of a precautionary measure taken for preservation of public order. The power is to be used with caution and circumspection. For the purpose of exercise of the power it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act. It is sufficient if from the material available on record the detaining authority could reasonably feel satisfied about the necessity for detention of the person concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. In the absence of any provision specifying the type of material which may or may not be taken into consideration by the detaining authority and keeping in view the purpose the statute is intended to achieve, the power vested in the detaining authority should not be unduly restricted. It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act.::: Downloaded on - 09/06/2013 18:11:50 :::
14 Cr.W.P. 885 of 2011 That will depend on the facts and situation of a case. Presumably, that is why Parliament did not make any provision in the Act in that regard and left the matter to the discretion of the detaining authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed."
(7) V.C. Mohan v. Union of India, 2002 Supreme Court Cases (Cri) 648. Paragraph 12 reads thus :
"12. We would like to record, however, another more important feature at this juncture: on an application before the Settlement Commission under Section 127-B of the Customs Act filed by the detenu on 8-2-2001 the Settlement Commission on 15-2-2001 after hearing the applicants and the Department, was pleased to admit the applications of the detenu and passed an order directing the detenu to make payment of additional duty of Rs.11,56,803 within 30 days from the date of receipt of the order. Apart therefrom, the Commission further observed that the Commission shall have the exclusive jurisdiction on the case of the detenu, in terms of Section 127-F(2) of the Customs Act, 1962 to exercise the powers and perform the functions of any officer of customs, to the exclusion of all other officers of customs and it is on this score that Mr. Mani contended and if we may say so, rightly, that both the application and the order of the Settlement Commission, Southern Bench, Chennai dated 15-2-2001 ought to have been placed before the detaining authority - the records however depict otherwise; neither the application nor the order passed thereon did see the light of the day before the detaining authority. There is no manner of doubt that the documents mentioned above are not only important but of definite impact in the matter of detention and having a bearing on to the issue. Under the circumstances, there thus stands a bounden obligation to place the same before the detaining authority for fair play and justice. The sponsoring authority conveniently kept to itself a ::: Downloaded on - 09/06/2013 18:11:50 ::: 15 Cr.W.P. 885 of 2011 very relevant material which could have tilted the scale before the detaining authority.
Needless to record that the sponsoring authority was able to place the letter from the Special Public Prosecutor regarding the condition of bail relaxation of the detenu dated 28-2-2001, but failed to place the orders of the Settlement Commission dated 8-2-2001 and 15-2-2001. Is it a lapse unintended or a deliberate failure ? The learned Senior Advocate appearing for the respondents however hadn't had any answer to the same. The factum of non-placement of relevant documents, in our view, has had a serious effect and made definite inroad into petitioner's liberty without application of mind. Non-placement of the order of payment of additional duty of Rs.11,56,803 within 30 days from the receipt of the order of the Commission has not only transgressed the rights of the petitioner but in our view speaks volumes about the conduct of the officials rendering the proceeding before the detaining authority vitiated and thus turned out to be illegal."
The learned counsel for the petitioner also has placed reliance on the following judgments :
(1) Satwinder Kaur Maan v. District Magistrate, 2002 ALL MR (Cri) 1123.
(2) Vilas Shamrao Goyar @ Chota Papa v. State of Maharashtra, 2011 ALL MR (Cri) 1491.
12) The learned Additional Public Prosecutor, Smt. A.V. Shinde submitted that, the representations made by the detenu were in English language. He has studied up to 7th Standard. In respect of verification made below in ::: Downloaded on - 09/06/2013 18:11:50 ::: 16 Cr.W.P. 885 of 2011 camera statements, the APP submitted that they were made after considering and verifying the truthfulness of the statements by the officer concerned. There was no defect in the verification which would vitiate the entire proceedings.
13) In respect of the bail applications the learned APP submitted that, the bail applications filed by the detenu were not a ground of detention. But the Commissioner of Police had mentioned in the Grounds of detention that he was aware that the petitioner was in custody and bail has not been granted to him in CR No. 93/2011. The Commissioner of Police was reasonably satisfied and believed that, the petitioner was likely to get bail in this CR under the normal law in due course. In fact, the detenu was released on bail in CR No.18/2011 one day before passing of the detention order and in CR No. 93/2011 bail was granted by the trial Court while the petitioner was in detention. That itself shows that there was reasonable basis for the Commissioner of Police to believe that, in the normal procedure the petitioner would get bail in these cases.
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14) In respect of providing documents in Marathi language the learned Additional Public Prosecutor submitted that, the petitioner's school record shows that he had studied Marathi subject. In the facts of the case the authorities did not find that the petitioner was not aware of Marathi language. The petitioner belongs to this region and considering the language of the representations made by him no prejudice is caused to the petitioner by furnishing documents in Marathi.
15) The learned Additional Public Prosecutor, therefore, submitted that considering the antecedents of the petitioner, his criminal activities and considering the material placed, the Commissioner of Police reached a subjective satisfaction and it was decided to detain the petitioner in exercise of powers under the MPDA Act 1981.
16) The learned Additional Public Prosecutor in support of her submissions has placed reliance on the following case laws.
::: Downloaded on - 09/06/2013 18:11:50 :::18 Cr.W.P. 885 of 2011 (1) Anil Dattu Pawar v. Himansu Roy, Commissioner of Police, 2005(2) Bom.C.R. (Cri.) 21. Para 8 reads thus :
"8. Plain reading of the decision of the Apex Court in Wasi Uddin Ahmed's case, therefore, would disclose that what is important to safeguard the rights of the detenu under Article 22(5) of the Constitution in relation to the representation which he is entitled to make against the order of detention is to apprise him of his entitlement to make such a representation. The said Article itself nowhere provides as to how to apprise the detenu of such entitlement. Undoubtedly, it is not an empty formality but a matter relating to the question of personal liberty. Being so, due care and caution should be taken by the detaining authority in apprising the detenu of his entitlement to make a representation against the detention order. Bearing this in mind, merely because in the Marathi translation the word "adhikar" (in Marathi) is missing, that itself cannot lead to the conclusion about the failure to comply with the obligation of the detaining authority to apprise the detenu of his entitlement to make representation. In substance, what has been conveyed that has to be seen. If in substance the grounds disclose conveyance of the entitlement of the detenu to him, then it would amount to sufficient compliance of the mandate of Article 22(5) of the Constitution. For that purpose, it may not require literal translation of the English version. In fact, it will depend upon the facts of each case. Besides, in a case where the detenu avails the right of entitlement without much delay, certainly it cannot be said that there has been failure to comply with its obligation on the part detaining authority in apprising the detenu of his right to make the representation. In Wasi Uddin Ahmed's case, in fact, there was total failure on the part of the detaining ::: Downloaded on - 09/06/2013 18:11:50 :::
19 Cr.W.P. 885 of 2011 authority to mention in the grounds of detention that the detenu had a right to make representation against the order of detention, as also the right of being heard before the Advisory Board, yet the Apex Court held that failure in that regard did not render the order of detention or the continued detention to be illegal as the detenu had availed of such a right of representation by making representation to the concerned authority. In the case in hand, apart from the absence of the word "adhikar" (in Marathi), there is sufficient compliance regarding intimation in English as well as in Marathi to the detenu about his entitlement to make representation to the authorities, including the detaining authority and the State Government and that he would be heard, if so desired, by the Advisory Board.
Undoubtedly, in the English version the word "right" has been specifically used. It is also undisputed fact that the detenu has studied upto VIIth standard in Marathi. Undoubtedly, on that count it is sought to be contended that the detenu is not well-versed with English language but at the same time he has stated that he knows Marathi. Considering that there is substantial compliance about the intimation of his entitlement to make representation, also in the Marathi translation, coupled with the fact that the petitioner had in fact made representation on 8-11-2004 through his Advocate, clearly reveal that there was no prejudice caused to the petitioner. That apart, mere delay on the part of the petitioner himself in making the representation cannot enure to his benefit to make grievance about absence of the word "adhikar" in the Marathi translation in relation to intimation of his entitlement to make representation."
(2) Shahid Mohd Yusuf Shaikh v. Shri. M.N. Singh, 2003 ALL MR (Cri) 857. Para 24 reads thus :
::: Downloaded on - 09/06/2013 18:11:50 :::20 Cr.W.P. 885 of 2011 "24. Having considered all the facts and circumstances and the various judgments cited hereinabove, in the instant case, the main contention of the learned Counsel for the Petitioner is that the Detaining Authority has not disclosed any cogent material to indicate as to how the detenu was likely to be released on bail in the near future. With regard to above, as pointed out hereinabove, in the grounds of detention, the Detaining Authority has set out the factual aspect as well as the statements recorded with regard to the incident which took place on 15.11.2001. The said narration of the facts very clearly indicate that though the petitioner has been charged with the offence punishable under Section 302 IPC, the sequence of events clearly indicates that the detenu as well as his associates had intended only to rob the taxi driver. It appears that when the taxi driver got down from the taxi and caught hold of the detenu the detenu had inflicted wound on the neck of the taxi driver and thereafter he and his associates started running. All these facts have been taken into account by the Detaining Authority and prima-facie the Detaining Authority seems to have come to the conclusion based on the above sequence of events that the charges under Section 302 IPC may not be sustained and hence the Detaining Authority has observed that there was every likelihood of the petitioner being released on bail in the near future. Even otherwise, even if the accused is charged under Section 302 IPC, it is not that such an accused would never get bail. There is always every likelihood of such person being released on bail. The Detaining Authority was very much aware of the same, and accordingly, had clearly mentioned as to how the petitioner who was in custody was likely to be released on bail in the near future and would indulge in the prejudicial activities which would be against the public order. In the instant case, there are three cases filed against the detenu.
::: Downloaded on - 09/06/2013 18:11:50 :::21 Cr.W.P. 885 of 2011 Over and above, there are two in-camera statements and the modus operandi appears to be that the petitioner and his associates armed with knives had been extorting money and committing robbery from the taxi drivers and the traders in the particular area thereby creating a situation of terror and fear in such locality and thereby endangering the public order. As has been observed by the Hon'ble Supreme Court in the above judgments, it is not for this Court to sit in judgment over the sufficiency of material produced before the Detaining Authority as to whether the detenu was likely to be released or not."
(3) Magar s/o Pansingh Pimple v. State of Maharashtra, Criminal Writ Petition No.268 of 2005 decided on 27 July 2005. Para 10 reads thus :
"10. By relying upon some judicial pronouncements of the Supreme Court, learned APP has tried to strike at the foundation of the writ petition. We may say that the cases were relied upon to apprise us of the scope of a writ petition challenging the detention order passed in exercise of powers conferred by a special statute and according to learned APP, since the detention order is required to be passed on the basis of subjective satisfaction of the detaining authority, High Court in its jurisdiction under Article 226 of the Constitution of India cannot assume the role of appellate Court nor it can intervene with the detention order lightly.
Bhim Sen V/s State of Punjab (1952 Criminal Law Journal, 75) was a decision of the Supreme Court of a Bench consisting of 3 Hon'ble Judges. No doubt, the decision was not one under MPDA Act. It was a matter of ::: Downloaded on - 09/06/2013 18:11:50 :::
22 Cr.W.P. 885 of 2011 Preventive Detention Act, 1950 and Section 3 of the said Act also spoke about "subjective satisfaction of detaining authority". The Supreme Court was dealing with 5 companion appeals from the judgments of High Court of East Punjab. The appellants therein had suffered the detention order issued by District Magistrate of Jullundur on 19-6-1951. The Supreme Court observed, thus, in para 7 of the judgment :
"The Legislature has made only the subjective satisfaction of the authority making the order essential for passing the order. The contention that because in the Amending Act of 1951 an Advisory Board is constituted, which can supervise and override the decision taken by the executive authority, and therefore, the question whether the grounds are sufficient to give rise to the satisfaction has become a justiciable issue in Court, is clearly unsound. The satisfaction for making the initial order is and has always been under the Preventive Detention Act, that of the authority making the order. Because the Amending Act of 1951 establishes a supervisory authority, that discretion and subjective test is not taken away and by the establishment of the Advisory Board, in our opinion, the Court is not given the jurisdiction to decide whether the subjective decision of the authority making the order was right or not. Proceeding on the footing, therefore, that the jurisdiction to decide whether the appellants should be detained under the Preventive Detention Act on the grounds conveyed to the appellants is of the District Magistrate. .... "::: Downloaded on - 09/06/2013 18:11:50 :::
23 Cr.W.P. 885 of 2011 (4) Firoz Khan v. State of Maharashtra, 2011 ALL MR (Cri) 3481. Para 10 of the judgment reads thus :
"10. The next ground raised is ground No.XVII. Ground XVII of the petition relates to in-camera statements. It reads as under :
"The Asst. Commissioner of Police, Sakkardara Zone, has failed to record proper verification under the statements verifying the truthfulness of the contents and has also failed to record his satisfaction as per the law. The Asst. Commissioner of Police while verifying the statements ought to have recorded his satisfaction about the truthfulness and genuineness of the so called in-camera statements of witness "A" and "B". The statements if perused would show that the name of the complainant, date and time of the alleged incident are deliberately kept blank in the copies supplied to the petitioner. A statement without the above details has resulted in adversely affecting the petitioner's right to make effective representation. The Asst. Commissioner of Police has failed to record his satisfaction about the truthfulness and genuineness of the contents of the said statements as well as the incident."
Ground No.XVII is in two parts. First two sentences and the last sentence deal with the Assistant Commissioner of Police, failing to record proper verification under the in- camera statements verifying the truthfulness and genuineness of the contents as well as the incident and also failing to record his satisfaction as per law. It is contended that the Assistant Commissioner of Police while ::: Downloaded on - 09/06/2013 18:11:50 ::: 24 Cr.W.P. 885 of 2011 verifying the statements ought to have recorded his satisfaction about the truthfulness and genuineness of the in- camera statements of witness A and B. As far as this contention is concerned, the endorsement of the Assistant Commissioner of Police below both the in camera statements shows that he has indeed recorded proper verification after verifying the truthfulness and genuineness of the contents of both the in-camera statements as well as the incidents stated therein. We find no error in the verification recorded by the Assistant Commissioner of Police about truthfulness and genuineness of the contents of the in-camera statements as well as the incident narrated by witness A and B. The verification recorded by the Assistant Commissioner of Police below the in-camera statements clearly shows that he is satisfied about the truthfulness and genuineness of the contents of the statements as well as the incident. This verification itself reveals his satisfaction and there is no need for him to record his satisfaction on this aspect separately. The verification by the Assistant Commissioner of Police, copy of which has been furnished to the detenu shows that not only he verified that the statements were properly recorded but the enquiry made by him showed that incidents stated in the in- camera statements were true and genuine. Thus we find no substance in this ground."
17) We have perused the original record, the material placed before us, considered the judgments cited supra and the submissions advanced by the learned counsel for the parties.
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18) As regards the bail applications we find that, it was not an issue in respect of the ground of detention. Out of three CRs the petitioner had applied for bail and in two cases bail was granted on 26th August 2011 and 29th August 2011. In CR No.93/2011 the petitioner got bail on 3rd September 2011. This itself demonstrates that the opinion of the detaining authority that though bail applications of the petitioner were pending he was likely to get bail was fortified. In the facts of the case we do not find that copies of bail applications ought to have been furnished by the detaining authority to the petitioner.
Grant of bail in these Crimes prior to the detention order supports the assessment of the detaining authority in respect of likelihood of the petitioner being released on bail in due course by following normal procedure of law. In the facts of the case and considering the material placed before us, we do not find that the contentions raised by the petitioner on this ground to challenge the detention order are sustainable. We do not find that any prejudice has been caused to the petitioner. The detaining authority has shown his application of mind while considering this aspect of the matter.
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19) In respect of the second contention as regards verification of the 'in-camera' statements it is noticed that the DCP Zone 1 after verifying its genuineness and truthfulness made endorsements below these in camera statements. The endorsements show satisfaction of the authority concerned regarding truthfulness of the statements. Furthermore, the DCP Zone 1, Aurangabad had, in a communication addressed to the Commissioner of Police Aurangabad dated 16-8-2011 categorically communicated that, the 'in camera' statements of the witnesses recorded were read over to them and the witnesses identified their signatures. The witnesses were also called by him and after considering the entire matter he was satisfied that the statements are truthful as regards the incidents in question. He has endorsed the proposal forwarded by the Police Sub Inspector, City Chowk Police Station. After considering these endorsements and the opinion expressed in writing by the DCP Zone 1, Aurangabad we do not find that, the ground raised by the petitioner about defective verification is sustainable.
20) On the issue of furnishing of the documents in Marathi language we are of the view that, the same has ::: Downloaded on - 09/06/2013 18:11:50 ::: 27 Cr.W.P. 885 of 2011 not caused any prejudice to the petitioner neither it violates vital rights of the petitioner, depriving him to represent his case before the authority, the State or the Advisory Board. The petitioner is a resident of Aurangabad. There is nothing on record to show that, he was not aware of Marathi language. One of the subjects of the petitioner in the school education was Marathi along withig Urdu language. Considering the representations made by the petitioner and taking into consideration the material placed on record we do not find that the detention order suffers from illegality on this ground.
21) We have perused the in-camera statements marked as "A", "B", "C", "D". The statements disclose that, the petitioner was threatening the persons with dangerous weapon. He was extorting money under threat.
People used to close down their shops after witnessing the presence of the detenu. The statements reveal that people were of the view that the detenu being of revengeful nature they were afraid to give statements.
22) Considering the material placed on record the detaining authority was satisfied that there was likelihood ::: Downloaded on - 09/06/2013 18:11:50 ::: 28 Cr.W.P. 885 of 2011 of release of the petitioner on bail. The detaining authority had taken into consideration the antecedents of the petitioner, his overall conduct, threat perception in the localities and the criminal cases lodged against the petitioner. The subjective satisfaction of the detaining authority is based on relevant and reliable material. We do not find any strong reason to hold that the procedural safeguards were violated in this case or there was no material before the detaining authority to reach his subjective satisfaction for passing the impugned detention order.
23) The Apex Court in the case of Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, in paras 35, 37 and 38 has observed thus:-
"35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', (Vide State of Maharashtra Vs. Bhaurao Punjabrao Gawande, (supra) - para
63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous ::: Downloaded on - 09/06/2013 18:11:50 ::: 29 Cr.W.P. 885 of 2011 power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.
37. As observed in Abdul Latif Abdul Wahab Sheikh Vs. B.K. Jha and another (1987) 2 SCC 22, vide para 5, :
"5. ...The procedural requirements are the only safeguards available to a detenu since the court is not expected to go behind the subjective satisfaction of the detaining authority.
ig The procedural requirements are, therefore, to be strictly complied with if any value is to be attached to the liberty of the subject and the constitutional rights guaranteed to him in that regard...."
As observed by Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee Vs. McGrath, 341 US 123 at 179, ".... It is procedure that spells much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law."
38. Procedural rights are not based on sentimental concerns for the detenu. The procedural safeguards are not to coddle criminals or provide technical loopholes through which dangerous persons escape the consequences of their acts. They are basically society's assurances that the authorities will behave properly within rules distilled long centuries of concrete experiences. "
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24) In the facts of the case we find that procedural safeguards have been observed in this case by the detaining authority. The petitioner had exhausted remedies available to him. After considering the material placed on record, the detaining authority decided to pass impugned order. The detaining authority was satisfied that the petitioner was a dangerous person as defined in the MPDA Act 1981. We do not find that in the facts of the case the grounds of detention are stale and do not provide a live link. It would not be appropriate in exercise of extraordinary writ jurisdiction of this Court to look into the subjective satisfaction of the detaining authority.
From the material placed on record we find that the Commissioner of Police has applied his mind and reached appropriate conclusions in accordance with law. There is no merit in the petition.
25) The writ petition is dismissed. Rule discharged.
Sd/- Sd/-
(T.V. NALAWADE, J.) (NARESH H PATIL, J.)
rsl
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