Bombay High Court
Rohit Kesrinath Patil @ Dappu vs The Commissioner Of Police, Thane & Ors on 28 March, 2018
Author: Prakash D. Naik
Bench: S.C. Dharmadhikari, Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 736 OF 2018
Rohit Kesrinath Patil @ Dappu ]
aged 25 years, residing at ]
401, Sai Prasad Apartment, ]
Kumbhar Aali, Behind National Hotel ]
Mumbai - Pune Road, Kalwa, ]
District - Thane. ] ... Petitioner
Versus
1. The Commissioner of Police ]
Thane. ]
2. The State of Maharashtra ]
Through Addl. Chief Secretary ]
to Government of Maharashtra ]
Mantralaya, Home Department ]
Mantralaya, Mumbai) ]
3. The Superintendent ]
Yerwada Central Prison, ]
Pune. ]
4. The Secretary ]
Advisory Board for M.P.D.A. Act ]
C/o. Home Department ]
Mantralaya, Mumbai - 400 032. ] ..Respondents
.....
Mr. Udaynath Tripathi for the Petitioner.
Mrs. M. H. Mhatre APP for the State.
.....
CORAM : S.C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
DATE : MARCH 28, 2018.
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JUDGMENT - (Per : Prakash D. Naik, J.) :-
1. The Petitioner has invoked the writ jurisdiction of this Court
under Arcitle 226 of Constitution of India and has sought issuance of writ
of habeas corpus for setting aside the order dated 6 th January, 2018 issued
under Section 3 of Maharashtra Prevention of Dangerous Activities of
Slumlords, bootleggers, Drug-offenders and Dangerous Persons, Sand
Smugglers and Persons Engaged in Black Marketing of Essential
Commodities Act, 1981.
2. The order of detention under challenge was executed on the
Petitioner/detenu on 9th January, 2018. The said order was issued by
Respondent No.1 with a view to prevent the Petitioner from acting in any
manner prejudicial to the maintenance of public order. Alongwith the
order of detention, the Petitioner was served with the grounds of detention
formulated by the detaining authority on the basis of which the impugned
order was issued against the Petitioner.
3. The order of detention has been challenged on various
grounds. However, the ground no. 6(b) is sufficient to set aside the
impugned order. Hence, we did not consider the other grounds raised by
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the Petitioner in this Petition. Ground 6(b) reads thus;
"b. The Petitioner says and submits that the detaining authority has
taken into consideration two criminal cases vide C.R. No. I-319 of 2017 and
C.R. No. I-320 of 2017 registered against the Petitioner and two statements of
witnesses 'A' and 'B' recorded in-camera for passing the order of detention. It
is pertinent to note that the incidents of these C.Rs. And statements have
taken place within the jurisdiction of Kalwa Police Station, Thane whereas
while recording his satisfaction in paragraph 7 of the grounds of detention, it
is mentioned that the Petitioner has unleashed a reign of terror and have
become a perpetual danger to the Society at large in the areas of Kalwa,
Kapurbawadi and Naupada Police Station. Thus, the satisfaction recorded is
excessive and erroneous. The satisfaction of the detaining authority is taken
into consideration extra areas of Thane while formulating the grounds of
detention and recording his subjective satisfaction. The satisfaction of the
detaining authority vitiates. The order of detention is illegal and bad in law,
liable to be quashed and set aside."
4. Mr. Tripathi, the learned Counsel representing the Petitioner
urged that the satisfaction recorded is excessive and erroneous. It is
submitted that the detaining authority has taken into consideration two
Criminal Cases registered vide C.R. No. I-319 of 2017 and C.R. No. I-320 of
2017 registered against the Petitioner and two statements of witness 'A'
and 'B' recorded in-camera for passing the order of detention. It is
submitted that incidents which are subject matter of the aforesaid cases
had allegedly occurred within the jurisdiction of Kalwa Police Station.
Whereas, while recording the satisfaction in the grounds of detention, it is
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stated that the Petitioner has unleashed a reign of terror and has become
a perpetual danger to the Society at large in the areas of Kalwa,
Kapurbawadi and Naupada Police Station. Thus, according to the learned
Counsel for the Petitioner, the detaining authority has taken into
consideration extra areas of Thane while formulating the grounds of
detention and recording his subjective satisfaction, thereby, vitiating the
order of detention. The learned Counsel relied upon the decision of this
Court delivered in Writ Petition No.5052 of 2015 in the case Vijaya Ganesh
Gajare Vs. Commissioner of Police dated 6th May, 2016.
5. Learned Additional Public Prosecutor submitted that the
satisfaction recorded in paragraph 7 of the grounds of detention is not
excessive and/or erroneous. Merely, on account of making references to
the two areas viz Kapurbawadi and Naupada would not vitiate the subject
satisfaction of the detaining authority. Learned Additional Public
Prosecutor relied upon the explanation tendered in paragraph 10 of the
affidavit in reply filed by the detaining authority.
6. We have perused the documents on record. The order of
detention was issued by Respondent No. 1 with a view to prevent the
Petitioner from acting in any manner prejudicial to the maintenance of
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public order. In paragraph 1 of the grounds of detention, it is mentioned
that the detenu is being communicated, the grounds mentioned in
paragraph 4(a), 4(b), 5(a) and 5(b) on which the detention order has been
issued by the detaining authority against the Petitioner under Section 3(2)
of the said Act. It is further stated that the copies of documents placed
before the detaining authority on which he has relied upon and formed his
subjective satisfaction are enclosed, except the names and identifying
particulars of witnesses/victims in connection with the grounds as
mentioned in paragraph no.5(a) and 5(b) which were not furnished to the
detenu in the public interest for which he claims privilege. In paragraph 2
of the grounds of detention, it is stated that the Petitioner is violent and
terrorizing criminal character on the record of Kalwa Police Station, Thane
Commissionerate, Thane city. According to the extract of History Sheet
register maintained at Kalwa Police Station and cases cited therein, it is
clear that the detenu is indulging in criminal activities since 2012 and his
activities are prejudicial to the maintenance of public order in the localities
of Kalwa, Kapurbawadi and Naupada Police Stations. The said paragraph
makes reference to the cases registered against the Petitioner at Kalwa
Police Station in the year 2012, 2014 and 2016. Reference is also made to
two cases registered with the same Police Station vide C.R. No.I-319 of
2017 and I-320 of 2017. This two cases are referred to in ground no.4(a)
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and 4(b) of the grounds of detention, which according to the detaining
authority were relied upon while issuing the order of detention. The
reference is also made to one case registered with Kapurbawadi Police
Station in the year 2015 and Naupada Police Station in the year 2017 vide
C.R. No.I-87 of 2015 and I-97 of 2017.
7. In paragraph 4 of the grounds of detention, it is stated that the
Petitioners criminal activities are noticed in the incidents referred to in the
said paragraph, which shows continuance of his tendency and inclination
towards committing crime, showing no respect to the existing law of the
land. Paragraph 4(a) refers to C.R.No.I-319 of 2017 registered with Kalwa
Police Station under Sections 392, 452, 504, 506(2), 34 of I.P.C. read with
Sections 37(1), 135 of Maharashtra Police Act. The incident in both the
aforesaid cases had allegedly occurred on 27 th September, 2017. Both the
cases are pending in the Court. Paragraph 5 of the grounds of detention
refers to the statements of witness 'A' and witness 'B' which were recorded
in-camera as the victims were afraid and were not willing to come forward
to depose against the Petitioner openly. The said statements were
purportedly recorded on 28th October, 2017 and 25th October, 2017. In the
light of the assertion in paragraph 1 of the grounds of detention the order
of detention is based on the two cases referred to hereinabove in paragraph
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4(a) and 4(b) reflected in paragraph 5 of the grounds of detention. The
alleged activities in connection with the said cases and the in-camera
statements had purportedly occurred within the jurisdiction of Kalwa Police
Station and the areas such as Kapurbawadi and Naupada were not involved
in any of the alleged activities on which the order of detention is issued. In
paragraph 6, it is stated that from the instances quoted in paragraph No.
4(a), 4(b), 5(a) and 5(b) of the grounds of detention, it is seen that the
Petitioner is a habitual and dangerous criminal involved in serious crimes.
His dangerous and criminal activities are threatening to public life and
property. To contain his criminal activities, preventive actions were taken
against him. However, his criminal activities are showing an ascending
trend and are prejudicial to maintenance of public order. The averments
in this paragraph also fortify the fact that the order is based on the
incidents reflected in para 4(a), 4(b), 5(a) and 5(b) of the grounds of
detention.
8. In paragraph no.7 of grounds of detention, however, it is
stated as follows;
"7. From the above facts, I am subjectively satisfied that you are a
"dangerous person" as defined in Section 2 (b-1) of the said Act. You have
unleashed a reign of terror and have become a perpetual danger to the
society at large in the area of Kalwa, Kapurbawadi and Naupada Police
Stations. The people are experiencing a sense of insecurity and are living
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under shadow of constant fear, whereby even day-to-day business and
activities of citizens are under threat. You show no respect to law of the land
and to the citizens of the society where you live. You are perpetually an
impulsive violent man who wants to spread terror in the society by your
violent criminal activities, in connivance with your other criminal associates.
Thus, the subjective satisfaction recorded by the detaining
authority shows that, the Petitioner is a dangerous person as defined under
the said Act and that he has unleashed the reign of terror and has become
perpetual danger to the Society at large in the area of Kalwa, Kapurbawadi
and Naupada Police Station. The detaining authority has therefore,
referred to the area of Kapurbawadi and Naupada Police Station which was
beyond the incidents reflected in paragraph 4 and 5 of the grounds of
detention. In the light of introductory paragraph of the grounds of
detention, which states that the detenu is being communicated the grounds
as mentioned in paragraph 4(a), 4(b), 5(a) and 5(b) on which the
detention order has been issued by the detaining authority under the
provisions of the said act, it is apparent that the detaining authority while
recording the subjective satisfaction has taken into consideration extra
areas. There is total non application of mind on the part of detaining
authority. The satisfaction recorded is therefore excessive and erroneous
which vitiates the same and the order of detention.
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9. The affidavit in reply filed by the detaining authority states
that, the satisfaction in paragraph 7 of the grounds of detention has been
rightly recorded by the detaining authority. It would be relevant to quote
paragraph 10 of the affidavit in reply dealing with the submissions
advanced by the Petitioner which reads as follows.
"10. With reference to ground 6(b) of the petition, it is denied that the
satisfaction recorded in para 7 of the grounds of detention is excessive and
erroneous as it is mentioned in said para that the petitioner has unleashed a
reign of terror and have become perpetual danger to the society at large in
the area of Kalwa, Kapurbawadi and Naupada Police Station.
It is submitted that I being Detaining Authority has rightly recorded
the satisfaction in para 7 of the grounds of detention as the detenu has
created reign of terror due to his prejudicial activities, in the area of Kalwa
as well as Naupada and Kapurbawadi areas which are nearby and adjoining
to the jurisdictional areas of Kalwa Police Station."
Thus, the detaining authority has affirmed the satisfaction in
para 7 of the grounds of detention by stating that the detenu has created
reign of terror due to his prejudicial activities in the area of Kalwa as well
as Naupada and Kapurbawadi areas which are nearby and adjoining to the
jurisdictional areas of Kalwa Police Station. In exercise of powers of
preventive detention the detenu is subjected to detention and deprived of
his liberty without being tried for any offence and all the more it is
expected that there is application of mind on the part of the detaining
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authority while issuing the order of detention. The contents of paragraph 7
of grounds of detention, and the reply filed by the detaining authority are
contrary to averments in paragraph 1 of the grounds of detention.
10. In the case of Vijaya Gajare (Supra) similar ground was agitated
before this Court while challenging the order of detention. In the grounds
of detention which was the subject matter of the said Petition also the
detaining authority has recorded his subjective satisfaction alleging that the
detenu has unleashed reign of terror and has become perpetual danger to
the Society at large in areas of Kondhawa, Wanawadi and Hadapsar Police
Stations, Pune city. Whereas, the incidents referred to in the grounds of
detention, on the basis of which the order of detention was issued occurred
within the jurisdiction of Hadapsar Police Station of Pune city. This Court
therefore observed that the grounds on which the subjective satisfaction is
based must be such as a rational human being can consider connected with
the fact in respect of which the satisfaction is to be reached. They must be
relevant to the subject matter of the inquiry and from the facts a legitimate
inference can fairly be drawn that the authority had not applied its mind to
the relevant facts. Where the liberty of a subject is involved and he has
been detained without trial, and a law made pursuant to Article 22 which
provides certain safeguards, it is the duty of the Court as the custodian
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and sentinel on the ever vigilant guard of the freedom of individual to
scrutinize with due care and anxiety that this precious right, which the
detenu has under the Constitution is not in any way taken away
capriciously, arbitrarily or without any legal justification. It would be
pertinent to note that in the present case in paragraph 2 there is a
reference to C.R. No.I-97 of 2007 registered with Naupada Police Station
and C.R. No.I-87 of 2015 registered with Kapurbawadi Police Station.
However, the detaining authority has categorically averred that the grounds
on which the order of detention is issued are reflected in paragraph Nos.
4(a), 4(b), 5(a) and 5(b). In these circumstances, there was no occasion
for the detaining authority to arrive at the subjective satisfaction by
including the activities allegedly occurred within the jurisdiction of
Kapurbawadi and Naupada Police Station which reflects total non
application of mind. The order of detention was issued with a view to
prevent the detenu from acting prejudicially to the maintenance of public
order. This subjective satisfaction of the detaining authority refers to
extraneous material which is contrary to the assertions made in the
grounds of detention that the order is based on the incidents which had
occurred within the jurisdiction of Kalwa Police Station. In view of the
above, the order of detention is required to be set aside.
Hence, we pass the following order.
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ORDER
1. Criminal Writ Petition No. 736 of 2018 is allowed.
2. The impugned order of detention bearing No. TC/PD/MPDA/01/2018 dated 6th January, 2018 passed by Respondent No. 1 be quashed and set aside and the detenu be released forthwith, if not required in any other case. Rule is made absolute accordingly.
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