Bombay High Court
Sheikh Salman Khan Shammi Khan Pathan vs State Of Maharashtra Thr. Home ... on 6 August, 2018
Author: M.G. Giratkar
Bench: P. N. Deshmukh, M. G. Giratkar
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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO. 946 OF 2017
Sheikh Salman Khan Shammi Khan Pathan,
Age 25 years, Occupation Private,
R/O. Kundanlal Gupta Nagar,
Police Station Yashodhara Nagar,
Nagpur. ... Petitioner
VERSUS
(1) State of Maharashtra,
Through Its Secretary,
Home Department,
Mantralaya, Mumbai - 32.
(2) Commissioner Of Police,
Nagpur City, Nagpur.
(3) Central Prison, Nashik,
Through Its Superintendent,
Nashik. ... Respondents
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Shri R. R. Vyas, Advocate for the petitioner
Smt. K. S. Joshi, Additional Public Prosecutor for the respondents
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CORAM : P. N. DESHMUKH AND
M. G. GIRATKAR, JJ.
Date : 6/8/2018.
Judgment (Per : M.G. Giratkar, J.) Rule. Rule made returnable forthwith. Heard finally with consent of learned counsel appearing for the parties. ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 :::
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2. By the present petition, the petitioner has challenged the order dated 22-8-2017 passed by the respondent no. 2, Commissioner of Police, Nagpur City, Nagpur in exercise of powers conferred by Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (for short 'MPDA Act') thereby directing the petitioner to be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
3. Heard learned counsel Shri Vyas for the petitioner. He has pressed following grounds in the petition.
(i) The order of detention passed by Commissioner of Police, Nagpur City, Nagpur, fails to mention period of detention and therefore on that ground only detention is liable to be quashed and set aside.
(ii) According to the provisions of Act of 1981, order of detention is required to be tested after every 3 months and the petitioner cannot be detain for uncertain and maximum period of detention. That being so order impugned is liable to be quashed and set aside.::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 :::
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(iii) The grounds of detention supplied by respondent no. 2 reveals that only one crime i.e. Crime No. 3056/2017 registered with Yashodhara Nagar Police Station for commission of offences punishable under Section 294, 506B, 341, 323, 34 of Indian Penal Code was considered, apart from two in camera statements. Crime no. 3056/2017 was registered on 10/04/2017 and offences mentioned in it were of bailable nature. The respondent no. 2 thus failed to take into consideration, nature of crime and effect thereupon. The activities mentioned in grounds of detention were not at all disclosing that petitioner was "dangerous person" and his activities were disturbing public order. Thus the order of detention is liable to be quashed and set aside.
(iv) The detaining authority did not supply true and correct translation of documents supplied to the petitioner, which has deprived the petitioner of submitting a representation effectively.
(v) Though in ground of detention it is stated "I hereby communicate to you the grounds as mentioned in Paragraph No. 4, below on which detention order has been issued", but respondent no. 2 has taken into consideration, paragraph no. 5 also. Thus it is clear that the 'grounds' were never communicated to the petitioner, as per the law laid down by the Hon'ble Apex Court in the case of Khudiram. Only Crime No., Police Station and Sections are supplied and no basic ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 4 jg.cri.wp 946.17.odt facts of the offences were mentioned. The said approach adopted by respondent no. 2 has resulted into miscarriage of justice and therefore interference at the hands of this Hon'ble Court is required.
4. Learned counsel for petitioner has submitted that order of detention passed by the Commissioner of Police, Nagpur City, Nagpur fails to mention period of detention and, therefore, on that ground only, detention is liable to be quashed and set aside.
5. Heard learned Additional Public Prosecutor Mrs. Joshi for the respondents. She has submitted that as per the scheme of the act, there was no any necessity to mention the period of detention under Section 3(1) of the MPDA Act. Respondent no. 1 in affidavit submitted a chart as under :-
(i) When the Detention is ordered by an : Yes officer empowered under section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers, Drug-
Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981, (hereinafter referred to as the said Act) whether the authorization by the State Government continues to be in force at the time of Detention Order ?
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(ii) Date of receipt of Report under section : 28.08.2017 3(3) of the said Act from the Detaining Authority by the Government.
(iii) Date of Approval Order issued by : 29.08.2017 Government
(iv) Date of Actual detention of the detenu : 22.08.2017
(v) Date of reference under section 10 of the : 29.08.2017 said Act to the Advisory Board.
(vi) Date of the Opinion of the Advisory : 05.10.2017 Board's Report in the Department.
(vii) Date of receipt of the Advisory Board's : 05.10.2017 Report in the Department.
(viii) Date of consideration of Report and : 06.10.2017 Proceedings of the Advisory Board by the Additional Chief Secretary (Home) who is duly empowered to do so under the Rules of Business of Government of Maharashtra.
(ix) Date of confirmation of the order of : 06.10.2017 detention by the Government.
6. It is submitted that Act does not provide to mention the detention period in the detention order issued by detaining authority. This issue is already decided by the Division Bench of this Court at Principal Seat in Criminal Writ Petition Nos. 1766/2017, 2260/2017 and 1613/2017 on 13-10-2017. It is held by the Division Bench as under :-
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6 jg.cri.wp 946.17.odt "What binds this Court is the decisions in the case of T. Devaki and Mrs. Harpreettt Kaur Harvinder Singh Bedi(supra).
In the light of the decision of the Constitution Bench of the Apex Court in the case of Makhan Singh (supra), the outer limit of the detention can be fixed by the State Government only after opinion of the Advisory Board is received. That what section 12 of the said Act provides. Therefore, the even if the original order of detention under sub-sections (1) or (2) does not mention the period of detention, it will not vitiate the order of detention. In the cases in hand, the State Government has fixed the period of detention as per Section 12 of the said Act."
7. In the present petition, the State Government received the opinion of Advisory Board on 5-10-2017. On 6-10-2017, confirmation order of detention was passed by the State Government for a period of one year. In view of the decision of Division Bench at Principal Seat of this Court in Criminal Writ Petition Nos. 1766/2017, 2260/2017 and 1613/2017, ground raised by the petitioner that period of detention is not mentioned in the detention order does not survive.
8. Learned counsel Shri Vyas has submitted that according to the provisions of the MPDA Act, order of detention is required to be tested after every three months and the petitioner cannot be detained ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 7 jg.cri.wp 946.17.odt for uncertain and maximum period of detention, therefore, order is liable to be quashed. It is pertinent to note that as per Section 3 of the MPDA Act, period of detention is of six months and thereafter, it is to be reviewed. Moreover, as per Section 12 sub-section (1) of the said Act, after receipt of report of Advisory Board, Government may extend the detention period not exceeding 12 months. The Government received opinion of Advisory Board on 5-10-2017 and on 6-10-2017, the order of respondent no. 2 came to be confirmed and detention is approved for a period of 12 months. Therefore, there is no illegality in the detention order.
9. Learned counsel for the petitioner has submitted that the grounds of detention supplied by the respondent no. 2 revealed that only one Crime No. 3056/2017 was registered with Yashodhara Nagar Police Station for the offences punishable under Sections 294, 506B, 341, 323 read with Section 34 of the Indian Penal Code. Detenu is a notorious criminal. The complainant has specifically stated in his complaint about the threatening by detenu. Not only that he was beaten and tried to take him to his office saying that " pyks bldks vkQhl esa ys tkdj lkys dk xse ctk Mkyrs gS". Complainant anyhow ran away from ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 8 jg.cri.wp 946.17.odt the clutches of detenu and saved him. Moreover, in-camera statements of witnesses A and B show that detenu is a dangerous person. Therefore, submission of learned counsel for the petitioner that offences are bailable etc. and therefore the submission that the petitioner has no force. The respondent no. 1 rightly observed about the recent activity of detenu.
10. Learned counsel for petitioner has submitted in respect of ground no. (iv) that detaining authority did not supply true and correct translation of documents to the petitioner, which has deprived the petitioner of submitting a representation effectively. It is pertinent to note that detenu was supplied copy of English version and also translation in Hindi. There is no dispute that detenu is knowing very well Hindi language and, therefore, no prejudice is caused to the detenu to make his representation. Hence, this ground is not tenable.
11. Learned counsel pressed ground no. (v) and submitted that though in ground of detention, it is stated that "I hereby communicate to you the grounds as mentioned in Paragraph No. 4, below on which detention order has been issued", but respondent no. 2 has taken into consideration ground no. (v) also. Therefore, grounds were never ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 9 jg.cri.wp 946.17.odt communicated to the petitioner as per the law. In support of his submissions, he pointed out decision in the case of Shri Sandeep @ Shankar Vasant Khalase Vs. The Commissioner of Police, Pune City and ors. [2018 ALL MR(Cri) 2512]. The Division Bench of this Court at Aurangabad Bench has observed that "detaining authority admitting that incident and other details of crime as set out in para 3 of Tabular Form of grounds of detention, not narrated in ground of detention. Detaining Authority has not verified in-camera statements personally and verification of statement made by Assistant Commissioner of Police also appears to be doubtful. Even though detaining authority considered recent case against petitioner."
12. Learned counsel Shri Vyas has submitted that in-camera statements were not verified by respondent no. 1 personally and therefore, in view of judgment of Shri Sandeep @ Shankar Vasant Khalase Vs. The Commissioner of Police, Pune City and ors., impugned detention order is liable to be quashed and set aside.
13. Learned Additional Public Prosecutor Mrs. Joshi has submitted that decision in the case of Ramesh Balu Chavan Vs. The Commissioner of Police and ors. [2017 ALL MR(Cri) 3683] was not ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 10 jg.cri.wp 946.17.odt pointed out to the Division Bench in the above cited case. Moreover, Section 5A was not considered in the above cited decision. In the case of Ramesh Balu Chavan Vs. The Commissioner of Police and ors., the Division Bench of this Court at Principal Seat has observed that "grounds which were not pointed out can be severed. The additional ground is nothing but past history of detenu. Section 5A of MPDA Act reads as under :-
5A. Grounds of detention serverable. - Where a person has been detained in pursuance of 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 -
(a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are -
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the State ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 :::
11 jg.cri.wp 946.17.odt Government or an 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 ground or grounds and made the order of detention ;
(b) 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 the remaining ground or grounds.
In view Section 5A, the Division Bench of this Court come to the conclusion that the additional ground which was in addition to the main grounds can be severed and only on that ground, the detention order cannot be quashed and set aside.
14. In the present case, ground no. 4 was pointed out to the detenu, but in the order, ground no. 5 in which history of the petitioner is given. Past history is nothing but in addition to the main ground against the detenu. The detaining authority has taken into consideration the ground no. 4 mentioned in the impugned show cause notice and order. Hence, in view of the judgment of Division Bench in the case of Ramesh Balu Chavan Vs. The Commissioner of Police and ors. (cited ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 12 jg.cri.wp 946.17.odt supra), grounds raised by the detenu is not a valid ground to quash the detention order.
15. Learned counsel Shri Vyas has submitted that in-camera statements were verified by Assistant Commissioner of Police and not the respondent no. 2 personally, therefore, on this ground, impugned order is liable to be quashed and set aside. The Division Bench of this Court in the case of Shailesh s/o Dnyaneshwar Kedar Vs. The Commissioner of Police, Nagpur and ors. [2015 ALL MR (Cri) 3042], (B.R. Gavai and A.S. Gadkari, JJ.) has held that "Detention order passed on basis of three crimes registered against petitioner on basis of two in- camera statements. Original in-camera statements of witnesses were verified by Assistant Commissioner of Police and satisfied that said statements are true and correct. Besides, subjective satisfaction also recorded that petitioner is a dangerous person as defined under MPDA Act and his activities are extremely prejudicial to public order. Order of detention is justified."
The same view is taken in the case of Bablu @ Pratik Hari Prakshale Vs. Shri Ranjit Kumar & ors. [2017 ALL MR (Cri) 3059]. ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 :::
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16. In the present case, detaining authority/respondent no. 2 has personally satisfied about the in-camera statements of witnesses A and B. Those statements were verified by Assistant Commissioner of Police. Subjective satisfaction is recorded by the respondent no. 2 that detenu is a dangerous person and his detention is necessary to maintain law and order. In view of the decision in the case of Shailesh s/o Dnyaneshwar Kedar Vs. The Commissioner of Police, Nagpur and ors. (cited supra), subjective satisfaction is recorded by the respondent no. 2. Therefore, ground raised by detenu that in-camera statements were not verified by the respondent no. 2 personally cannot be a ground to quash the impugned detention order.
17. All the grounds raised by the detenu in the petition are not helpful to him to quash the detention order. The respondent no. 2 has personally satisfied by taking into consideration the recent crime against the detenu. Complaint itself lodged against the detenu shows that detenu is a dangerous person. From the in-camera statements of witnesses A and B, it is clear that detenu was externed even though his activity is not curtailed. On the other hand, he is extorting money and threatening the people. Respondent no. 2 taken into consideration all ::: Uploaded on - 16/08/2018 ::: Downloaded on - 16/08/2018 23:56:35 ::: 14 jg.cri.wp 946.17.odt the valid and reasonable grounds to detain the petitioner as per Section 3 of the MPDA Act. The order of respondent no. 2 is confirmed by the State Government after the receipt of opinion of Advisory Board. His detention is confirmed as per Section 12 of the said Act.
18. In that view of the matter, we do not find any illegality in the impugned detention order, hence, petition is liable to be dismissed. Accordingly, we dismiss the petition.
JUDGE JUDGE
wasnik
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