Bombay High Court
Suman Sudhakar Jadhav vs The Commissioner Of Police And Ors on 22 March, 2016
Author: V.K.Tahilramani
Bench: V.K.Tahilramani, Anuja Prabhudessai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 5036 OF 2015
Smt. Suman Sudhakar Jadhav ]
Age 50 years, Occ: ]
Residing at Lokmanya Nagar ]
Pada No.4, Babulal Seth Chawl ]
Near Naresh Kirana Store ]
Thane (West) Thane ]..Petitioner
[Mother of Detenu]
Vs.
1. The Commissioner of Police ]
Thane ig ]
]
2. The State of Maharashtra ]
(Through Addl. Chief Secretary ]
to Govt. of Maharashtra, ]
Home Department, Mantralaya ]
Mumbai. ]
]
3. The Superintendent, ]
Nashik Road Central Prison, ]
Nashik. ]..Respondents
....
Mr. Udaynath Tripathi Advocate for Petitioner
Mrs. A.S. Pai A.P.P. for the State
....
CORAM : SMT.V.K.TAHILRAMANI AND
SMT. ANUJA PRABHUDESSAI, JJ.
DATED : MARCH 22, 2016
ORAL ORDER [PER SMT. V.K.TAHILRAMANI, J. ]:
1 Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner - Suman Sudhakar 1 of 7 ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:16 ::: jdk 2 13.crwp.5036.15.j.doc Jadhav who is the mother of detenu - Ganesh Sudhakar Jadhav @ Kalya Ganya, has impugned the order of detention dated 2.12.2015 passed by Respondent no.1 Commissioner of Police, Thane, detaining the detenu under Sub-Section (2) of Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment 1996) (Mah. Ord. X of 2009) (hereinafter referred to as "MPDA Act"). The detention order along with the grounds of detention dated 2.12.2015 was served on the detenu on 2.12.2015.
2 Though a number of grounds have been raised in this petition assailing the order of detention, only one ground was pressed before us i.e. ground 6(b) in the petition. The said ground reads as under:
"6(b) The petitioner says and submits that the detaining authority has specifically mentioned in the opening paragraph of the grounds of detention that the said authority is communicating to the detenu the grounds as mentioned in paragraph No. 4(a) on 2 of 7 ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:16 ::: jdk 3 13.crwp.5036.15.j.doc which the order of detention has been passed by the said authority on 01.12.2015. There is only one case i.e. C.R. No. I-559 of 2015 in para 4(a) of the grounds of detention. It is therefore, clear that para 5 of the grounds of detention is not considered by the said authority for passing order of detention. The petitioner says and submits that for a single solitary incident as narrated in abovesaid C.R., the petitioner cannot be called a "Dangerous Person". The provisions of MPDA Act cannot be applied in this case. The order of detention is illegal and bad in law, liable to be quashed and set aside".
3 Mr. Tripathi, the learned counsel appearing for the petitioner drew our attention to the grounds of detention. In the grounds of detention, it is specifically stated as under:
"I hereby communicate to you the grounds as mentioned in paragraph No. 4(a) below on which the detention order has been passed by me on this day against you under-section (2) of Section 3 of the said Act".
Mr. Tripathi contended that from this it is clear that the detaining authority has issued the detention order only 3 of 7 ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:16 ::: jdk 4 13.crwp.5036.15.j.doc based on the ground which is mentioned in 4(a) of the grounds of detention. 4(a) of the grounds of detention only deal with one case relating to C.R. No. I-559 of 2015 of Vartak Nagar Police Station. The said case is under Sections 392, 385, 427, 506(II) read with Section 34 of IPC and under Section 37(1) and 135 of the Bombay Police Act. Mr. Tripathi submitted that from the grounds of detention, it is clear that the detaining authority has only relied on C.R. No. I-559 of 2015 to issue the order of detention. He submitted that the detenu has been detained as he is a "dangerous person" and a person can be called "dangerous person" only if he habitually commits any of the offences punishable under Chapter XVI or XVII of IPC or any of the offences punishable under Chapter V of the Arms Act. Mr. Tripathi submitted that in paragraph 1 of the grounds of detention, the detaining authority has clearly stated that the detention order has been issued on the basis of grounds mentioned in paragraph 4(a) of the grounds of detention. In paragraph 4(a) only one case is mentioned i.e. CR No. I-559 of 2015. Mr. Tripathi submitted that only on the basis of this single solitary incident, it cannot be said that the detenu is a "dangerous person".
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4 The detention order in the present case has been
passed against the detenu because he is a "dangerous person"
as visualized under MPDA Act. In such case, it would be necessary to see the definition under MPDA Act relating to "dangerous person".
The relevant definition applicable to a "dangerous person" which is in section 2(a)(iv) of the MPDA Act is as follows:
"2. In this Act, unless the context otherwise requires-
(a) "acting in any manner prejudicial to the maintenance of public order" means-
(i) ... ... ... ...
(iv) in the case of dangerous person, when he is engaged, or is making preparation for engaging, in any of his activities as a dangerous person, which affect adversely, or are likely to affect adversely, the maintenance of public order."
5 The activity of the detenu is clearly covered by Sec.
2(a)(iv) but that is not enough. It would also be necessary to
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see Section 2 (b-1) of the MPDA Act which deals with "dangerous person" which reads as under:
"2.[b-1) "dangerous person" means a person, who either by himself or as a member or leader of a gang, "habitually commits", or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959 (LIV of 1959);]".
[EMPHASIS SUPPLIED] 6 Thus, a perusal of Section 2(b-1) would show that if a person singly or as a member or a leader of a gang "habitually commits" or attempts to commit or abets the commission of any offence punishable under Chapter XVI or Chapter XVII of the IPC or Chapter V of the Arms Act, he would be a dangerous person in terms of Section 2(b-1) of the MPDA Act. Just as a single swallow does not make a summer a solitary act, does not constitute a habit. In the instant case, it is clear that the detaining authority has issued the order of detention based only on paragraph 4(a) which deals with C.R. No. I-559 of 2015.
On the basis of this solitary ground, it cannot be said that the 6 of 7 ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:16 ::: jdk 7 13.crwp.5036.15.j.doc case of the detenu fits in the definition of "dangerous person"
as visualized in Section 2(b-1) of the MPDA Act. This solitary act pertaining to CR No. I-559 of 2015 would not constitute a "habit". On the basis of this C.R. it cannot be said that the detenu "habitually commits" or attempts to commit or abets the commission of any of the offences mentioned in Section 2(b-1) of the MPDA Act. Since the detenu has been detained as he is "dangerous person" the impugned order of the detention would not be sustainable in law.
7 For the aforesaid reasons, we allow this writ petition and quash and set aside the impugned detention order dated 2.12.2015 passed by respondent no.1 and direct that detenu -
Ganesh Sudhakar Jadhav @ Kalya Ganya be released forthwith unless wanted in some other case.
8 Rule is made absolute in above terms.
[ SMT. ANUJA PRABHUDESSAI, J.] [ SMT. V.K.TAHILRAMANI,J. ] kandarkar 7 of 7 ::: Uploaded on - 29/03/2016 ::: Downloaded on - 31/07/2016 09:54:16 :::