Document Fragment View

Matching Fragments

THURSDAY, 03RD MARCH, 2016 / FRIDAY, 04TH MARCH, 2016.

ORAL JUDGMNENT : [Per S.C. Dharmadhikari, J.]

1. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order of detention dated 7 th WP4510.15.doc August, 2015, issued by the Commissioner of Police, Pune City, under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 (for short "MPDA Act").

2. The petition proceeds to state that the petitioner is the brother of the detenu. Detenu is one Dipak alias D. Baba Kashinath Kamble. The petitioner states that the detention order is vitiated on two counts. The first pertains to the legality and validity of the detention order. It is submitted that the detention order is founded on two C.Rs and two in camera statements. In regard to this, it is submitted by Mr. V.N. Tripathi, learned advocate appearing for the petitioner that these two in camera statements have not been verified. If there is no verification of the in camera statements, then, the same cannot form part of the subjective satisfaction simply because the detaining authority has no material to confirm the incidents that are narrated by such witnesses. The truthfulness can be gathered provided there is a verification of these statements and that statement certifies that the incidents, as narrated, have indeed taken place. In the present case, no such satisfaction has been recorded inasmuch as WP4510.15.doc the two in camera statements, copies of which have been supplied, have not been verified. If they are omitted from consideration, then, what remains as the basis of the subjective satisfaction are the two CRs. In relation to those, Mr. Tripathi would submit that one CR No.3098 of 2015 refers to section 37(1) read with 135 of the Maharashtra Police Act, 1951, and section 7(25) of the Arms Act. The details of the incident resulting in recording of the same are narrated in paragraph 4.1 in the grounds of detention. The argument is that on a plain reading of the F.I.R., it will not be held by any man of prudence that by mere possession of one sharp koyta, the public order is disturbed. Thus, mere possession of any arms without any use and and overt act cannot be the basis for a subjective satisfaction that public order is disturbed. If public order is not disturbed, provisions of MPDA Act are not attracted. The petitioner then submits that if the CR No.3098 of 2015 is thus excluded then remains only one CR being CR No.392 of 2015. That single or solitary CR and the incident referred therein would not lead to the conclusion that the petitioner is a dangerous person within the meaning of section 2(b-1) of the MPDA. Mr. Tripathi would submit that a single solitary incident of the nature referred to will WP4510.15.doc not enable the detaining authority to conclude that a person 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 and XVII of the Indian Penal Code, 1860 or any of the offences punishable under Chapter V of the Arms Act, 1959.

He has been habitually committing offences and which come within the purview of Chapter XVI and XVII of the Indian Penal WP4510.15.doc Code. Thus, he is a dangerous person. The criminal activities within the jurisdiction of Bhosari, Hinjewadi and Pimpri Police Stations in Pune city are prejudicial to the maintenance of public order. In order to curb the criminal activities of the detenu, preventive actions have been taken against him from time to time. In that regard, Mr. Yagnik would invite our attention to the chart which is referred to in the affidavit of the detaining authority. Mr. Yagnik then submits that though this detenu was externed for a period of one year from Pune District vide order No.26 of 2014 dated 3rd December, 2014, that order of externment was stayed by this Court. After this order, the petitioner continued committing serious offences and those were, according to Mr. Yagnik, extensively referred to in the detention order. Thus, whenever there were any criminal complaints registered, the detenu was arrested. He was released on bail and after such release, he again committed serious offences. There is a reign of terror and created by the detenu. The even tempo of life is disrupted and disturbed. It is in these circumstances that the senior Inspector of Police, Pimpri Police Station, Pune, sent a proposal dated 24th July, 2015 for the detention of the detenu under MPDA. This was forwarded through proper channel.

Hence that Police Station, through its senior Police Inspector, sent a report to the Deputy Commissioner of Police, Zone-3, on 1 st August, 2015, regarding petitioner's bail. The Deputy Commissioner of Police, Zone-3 perused that proposal and all documents and thereafter the proposal was forwarded on 3 rd August, 2015. The proposal was also placed before the Additional WP4510.15.doc Chief Commissioner of Police, Crime, Pune, on 3 rd August, 2015, and thereafter he forwarded it to the Joint Commissioner of Police, Pune, on 4th August, 2015. He perused all the documents and applying his mind to the materials before him, he forwarded the proposal to the detaining authority on 5th August, 2015. The detaining authority received the proposal comprising of 226 pages of relevant documents on 5 th August, 2015, and he perused it from 5th to 7th August, 2015. That is how the affidavit proceeds to state that the detaining authority was subjectively satisfied that the detenu is a weapon wielding dangerous desperado of violent character and on the basis of the two offences i.e. C.R. No.3098 of 2015 and C.R. No.392 of 2015, so also two in camera statements, he reached the conclusion that the detenu is a dangerous person within the meaning of section 2(b-1) of the MPDA Act.