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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.

(xvii) The Petitioner says and submits that the detaining authority has taken into consideration a criminal case vide C.R. No. 3098 of 2015 under Section 37(1) r.w. 135 and Section 7(25) of Arms Act. The details of incident is narrated in paragraph No.4.1 of the grounds of detention. The Petitioner says and submits that on a plain reading of the said incident by no stretch of imagination it will be held by a man of prudence that as a result of mere finding in possession of one sharp Koyta with the person and in car of the Petitioner, public order is disturbed. The Petitioner says and submits that mere possession of any arm without any use and overt act of the same, WP4510.15.doc cannot be held that public order is disturbed and if no public order is disturbed, provisions of MPDA Act, 1981 i.e. Section 3 of the said Act cannot be attracted.

10 Thus, a perusal of the Section 2(b-1) would show that if the 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, after the three in camera statements are excluded from consideration as the verification of all the in camera statements by the ACP was not WP4510.15.doc furnished to the detenu and CR No. 3088 of 2015 cannot be taken into consideration, for the reasons stated in paragraph 7 above by us, that leaves us to only with CR No. 91 of 2015. We shall now proceed to examine whether on the basis of this CR, the detenu can be held to be a dangerous person so as to sustain the order of detention.