Bombay High Court
Ganesh Alias Gani Sakharam Rakhpasare vs The State Of Maharashtra And Ors on 8 December, 2023
Author: Gauri Godse
Bench: Revati Mohite Dere, Gauri Godse
Digitally
2023:BHC-AS:39140-DB
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
2023.12.22
16:59:39
+0530
3-wpst-18233-2023.2.docx
Varsha
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 18233 OF 2023
Ganesh alias Gani Sakharam Rakhpasare
Age - 19, Occ - Student,
R/at - Rakhpasre Vasti
Lohgaon, Pune
(Presently in custody of
Nagpur Central Jail) .......Petitioner
Versus
1. The Commissioner of Police
Pune, Agarkar Nagar,
Pune City
2. The State of Maharashtra
Vimantal Police Station
Pune
3. The Superintendent of Jail
Nagpur Central Prison
Nagpur ......Respondents
Ms. Rui Danawala i/b. Mr. Mr. Pushkar Durge for the Petitioner.
Ms. M. H Mhatre, APP for the State.
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CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
DATED : 8th DECEMBER 2023
JUDGMENT (Per : Gauri Godse, J.) :
1. By this petition, the petitioner challenges the order of detention bearing No. Crime PCB/DET//RAKHPASARE/157/2023 dated 15th May 2023 issued by respondent no. 1- the Commissioner of Police, Pune in exercise of the powers conferred by Sub Section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 ("the M.P.D.A. Act") for detaining the petitioner.
2. Perusal of the detention order indicates that the detaining authority has relied upon two complaints filed against the petitioner vide CR No.451 of 2022 registered on 26 th November 2022 for the offences punishable under Sections 336, 504, 506 read with Section 2/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx 34 of the Indian Penal Code; under Section 3, 25, 27, 29 and 35 of the Arms Act,1959; and under Section 37(1)(3) and 135 of the Maharashtra Police Act and CR No. 128 of 2023 registered on 7 th March 2023 for the offences punishable under Sections 341, 323, 504 and 506 read with Section 34 of the Indian Penal Code and under Sections 128 and 177 of the Motor Vehicles Act,1988.
3. The allegation against the petitioner in CR No. 451 of 2022 is that the petitioner and his accomplice created terror in the area where the complainant, who is a police officer, was on patrolling duty. It is alleged that the petitioner and his accomplice fired rounds from his pistol and created terror amongst the public. There is no specific allegation against the petitioner, and that the allegation of firing rounds is against the accomplice of the petitioner. The petitioner was arrested on 26 th November 2022 and was granted bail on 2nd December 2022.
4. In CR No. 128 of 2022, the allegation is that the petitioner and his accomplice abused and assaulted the complainant during an 3/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx altercation at a petrol pump. In the said CR, the allegations against the petitioner is that he assaulted the complainant with kicks and fists. The petitioner was produced before the Magistrate along with the charge sheet on 18th April 2023 and was granted bail on 20 th April 2023.
5. The detaining authority has relied upon two in-camera statements in reference to the incidents of 6 th March 2023 and 7th March 2023. A perusal of the detention order does not indicate the date of recording of the in-camera statements. However, the affidavit filed on behalf of the detaining authority indicates that the in-camera statements were recorded on 15th March 2023 and 20th March 2023. The allegations in both the in-camera statements are similar in nature. The allegations in both the in-camera statements are of extorting money by threatening the witness by using a weapon.
6. Thus, by relying upon the aforesaid two CRs and two in- camera statements, the detaining authority has recorded subjective satisfaction that the petitioner is a dangerous person and is required 4/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx to be detained to prevent him from indulging in any prejudicial activities.
7. Learned counsel for the petitioner has raised various grounds of detention. However, it is not necessary to examine all the grounds in as much as the petition deserves to be allowed on the grounds of challenge raised in clauses (W), (X) and (Y) of the grounds of the petition which read as under:
"W) That, from the perusal of the in-camera statement of A' dated 15.03.2023 and in-camera statement of 'B' dated 20.03.2023. It appears that the statements recorded are mutatis mutandis and only minor difference are added to fill up the lacuna in case.
X) That, on perusal of in-camera statements it can be seen that both in-camera statements indicates incidences of same area.
The gist of in-camera statements is that the allegations recorded in both in- camera statements are also same and cyclostyled.
Y) That, on perusal of first seven lines of both in-camera statements are similar from word to word. On a minute 5/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx reading one can gauge that the details mentioned are same."
8. All the aforesaid grounds are in reference to the in-camera statements relied upon by the detaining authority. In support of the aforesaid grounds of challenge, the learned counsel for the petitioner submitted that the gist of the in-camera statements reproduced in the detention order shows that the first part of the gist of both the in- camera statements is word to word the same. She submitted that the only difference between the two in-camera statements is with respect to the amount allegedly extorted by the petitioner and the date and time of the incident. She submitted that both the in-camera statements indicate the alleged incidents of the same area, and the allegations in both the in-camera statements are the same and appear to be copied from one statement and pasted into another statement. She submitted that the in-camera statements do not appear to be genuine and have been recorded to fill up the lacuna for recording some grounds of detention.
9. The learned APP supported the detention order by relying upon the respective affidavits filed on behalf of the detaining 6/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx authority, the Jail Authorities and the State Government.
10. In reference to the aforesaid grounds of challenge, the learned APP relied upon the additional affidavit filed on behalf of the detaining authority. Learned APP submitted that both the CRs registered against the petitioner reveal that the petitioner and his associates created terror amongst the public by using deadly weapons. She submitted that the incidents of the aforesaid CRs are captured in the CCTV footage, which shows that the petitioner is involved in dangerous activities disturbing the public order. Thus, by referring to the incidents of the two CRs relied upon by the detaining authority, it is submitted that the incidents narrated by the witnesses of the in-camera statements show that the petitioner is a habitual offender indulging in the activities of creating terror amongst the public at large. She submitted that the in-camera statements are different and distinct from each other, that there is no substance in the ground of challenge raised on behalf of the petitioner, that the allegations in the in-camera statements are the same, and that they are recorded only to fill up the lacuna. 7/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 :::
3-wpst-18233-2023.2.docx She submitted that there is no substance in the grounds raised on behalf of the petitioner.
11. We have considered the submissions made on behalf of both the parties. We have perused the record of the petition as well as the affidavits relied upon by the learned APP. A perusal of the in-camera statements shows that the first part of both the in-camera statements is word to word the same, except for the difference in the amounts stated to have been extorted by the petitioner. So far as the second part of the in-camera statements is concerned, the allegations in both statements also appear to be the same except for a minor difference in the date and time of the incident. The allegations made by the witness 'A' reproduced in the detention order show that the witness alleged that on 6th March 2023, around 10.45 hours in the night, when the witness was going home, the petitioner stopped his vehicle and threatened him by using a sickle-like a weapon. A similar allegation is made by witness 'B', thereby stating that on 7th March 2023, around 1.30 hours, when the witness was going home in an auto rickshaw, the petitioner came in front of the witness and, by 8/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx showing sickle forcibly extorted money from him. In the second part of both the in-camera statements, the witness stated that the petitioner forcibly removed Rs. 500/- from the witness's pocket. Thus, both the in-camera statements appear to be word-to-word the same, except for a minor variation in the date and time of the incident and a minor variation in the formation of a sentence with respect to the alleged incident.
12. Learned APP has sought to rely upon the allegations in the 2 CRs relied upon by the detaining authority to show that there are similar allegations against the petitioner in the CR as well as in- camera statements; hence, the allegations made in the in-camera statements of the witness also appear to be authentic. Except for the aforesaid explanation, there is no satisfactory reason indicated on behalf of the detaining authority in reference to the similarity in both the in-camera statements. From the perusal of the gist of the in- camera statements reproduced in the detention order it appears that the contents of the in-camera statements were copied and pasted from one statement to another. We do not find any substance in the 9/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx explanation given by the detaining authority to support the genuineness of the in-camera statements.
13. Considering the nature of the allegations against the petitioner made in both the in-camera statements, which are not only similar but also particulars of the area and the time and the amount allegedly extorted by the petitioner, which creates doubt on the genuineness of the in-camera statements. Thus, it shows non- application of mind on the part of the detaining authority, and the subjective satisfaction recorded by the detaining authority does not appear to be based on any cogent material. The word-to-word similarity of the in-camera statements relied upon in the grounds of detention is sufficient to create doubt in the mind of the petitioner regarding the material relied upon by the detaining authority for recording subjective satisfaction against the petitioner, thus depriving him of making any effective representation. Thus, the right of the petitioner guaranteed under Article 22(5) of the Constitution of India is violated. Thus, the detention order stands vitiated the continued detention of the petitioner is rendered illegal and 10/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 ::: 3-wpst-18233-2023.2.docx impermissible.
14. Hence, for the reasons stated above, petition is allowed by passing following order:
ORDER "(1) The Hon'ble Court be pleased to issue writ in the nature of Certiorari or any other appropriate order or direction in the nature of writ, kindly quash and set aside the illegal order of detention dated 15.05.2023 passed by the Respondent No.1 against the Petitioner and consequently the Respondent No.3 may kindly be directed to release the Petitioner from the Nagpur Central Prison, Nagpur."
15. Petitioner, the detenu be set at liberty forthwith, unless required in any other case.
16. All parties to act on the authenticated copy of the order.
GAURI GODSE, J. REVATI MOHITE DERE, J. 11/11 ::: Uploaded on - 22/12/2023 ::: Downloaded on - 29/02/2024 07:20:52 :::