Quashed

Swapnil Sanjay Tahsildar v. the District Magistrate Kolhapur and Ors.

Bombay HC17 Oct 2012WP/2174/2012

Case brief

AI extract

What is this about?

This High Court disposed of a writ petition challenging a preventive detention order. The Court quashed the detention, holding that it was vitiated by failure to supply verified copies of in-camera statements to the detenu and by non-consideration of a bail order, violating Article 22(5).

What did the court decide?

Rule made absolute quashing the order of detention against the petitioner.

Swapnil Sanjay Tahsildar Vs the District… — Pension and Retirement Benefits | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2174 OF 2012

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Swapnil Sanjay Tahsildar. .. Petitioner Vs The District Magistrate & Others. .. Respondents

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Shri U.N. Tripathi for the Petitioner. Smt. A.S. Pai, APP for the State.

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CORAM : A.S. OKA & SMT. SADHANA S. JADHAV, JJ DATE : 17TH OCTOBER, 2012

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ORAL JUDGMENT ( PER A.S. OKA, J )

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By this Petition for seeking a writ of habeas corpus under Article 226 of the Constitution of India, the Petitioner has taken an exception to the order dated 26^th April, 2012 passed by the first Respondent in exercise of powers under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders & Dangerous Persons Act, 1981 ( hereinafter referred to as the “Said Act”). By the said order, the first Respondent directed that the Petitioner shall be detained by way of prevention in exercise of powers under the said Act.

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Learned counsel appearing for the Petitioner has urged two

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grounds. The first ground is that the detaining authority has taken into consideration two incamera statements of the witnesses “A” and “B”. It is contended that the two incamera statements are not verified by any senior officer to ensure that the statements are true and genuine. Learned counsel appearing for the Petitioner pointed out the affidavit of the detaining authority in which it is contended that incamera statements were duly verified by the SubDivisional Police Officer, City Police Station, Kolhapur on 16^th February, 2012. He submitted that copies of the verification statements were not furnished to the Petitioner detenu which is in violation of Article 22(5) of the Constitution of India. He pointed out that the detaining authority has relied upon three criminal cases registered against the Petitioner. However, in case of none of the three offences, the bail orders have been placed before the detaining authority and the detaining authority was completely unaware of the position regarding grant of bail. He pointed out that in case of one offence, the detaining authority has merely recorded that the Petitioner was released on bail. However, he urged that there is nothing on record to show that the order granting bail was placed before the detaining authority. He invited our attention to Paragraph 3 of the affidavitinreply filed by the detaining authority in which it is admitted that in case of C.R. NO.27 of 2012, the bail order was passed after submission of the proposal and, therefore, the bail order was not included in the supporting documents of the proposal. He has placed

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reliance on various decisions of this Court and the Apex Court. The learned APP supported the impugned order of detention. The learned APP submitted that considering the prejudicial activities of the Petitioner, the detaining authority has rightly passed an order of preventive detention after recording subjective satisfaction. Her submission is that no interference can be made with the impugned order of detention in view of the subjective satisfaction recorded by the detaining authority after considering the prejudicial activities of the Petitioner detenu.

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We have given careful consideration to the submissions. Perusal of order of the detaining authority shows that reliance has been placed specifically on incamera statements of the witnesses A and B. Copies of the incamera statements of the witnesses A and B supplied to the Petitioner have been annexed to the Petition which do not contain verification. In Paragraph 4 of the affidavit in reply filed by the detaining authority, it is stated that both the statements were duly verified by the SubDivisional Police Officer, City Division, Kolhapur on 16^th February, 2012. The detaining authority has merely stated that copies of incamera statements have been duly furnished by the Petitioner detenu. We may note here that in Ground (b), a specific stand has been taken that the copies of the verification statement have not been furnished to the Petitioner. Thus, it is undisputed position that

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there is a verification made of both the incamera statements and the copies of the verification have not been furnished to the Petitioner detenu.

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Reliance has been placed by the learned counsel appearing for the Petitioner on a decision of the Division Bench of this Court in the case of Smt. Subhangi Thukaram Sawant v. R.H. Mendonca & Ors., (2001 ALL MR (Cri.) 68). He has also placed reliance on another decision of a Division Bench of this Court in the case of Vijay Ramchandra Angre Vs. Shri S.M. Shangari & Ors., (2004 ALL MR (Cri.) 1974). The law consistently laid down in this behalf is that the failure to supply copies of incamera statements to the detenu which do not contain verification made by the concerned superior officer results into violation of Article 22(5) of the Constitution of India which vitiates the order of detention. Thus, in the present case, the detention is vitiated on that ground. Perusal of the affidavit of the detaining authority shows that in relation to C.R. No.27 of 2012, the Petitioner was enlarged on bail before the order of detention was passed. Perusal of the affidavit of the detaining authority shows that the application for bail and the order granting bail was not perused by the detaining authority.

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It is well settled law that the bail order passed in favour of

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the detenu is a vital document. In the case of Hrushikesh Tanaji Bhoite Vs. State of Maharashtra & Ors., (2012 Cr.L.J. 1334), the Apex Court held that non placing and non consideration of vital material such as bail order vitiates the order of the detention passed by the detaining authority. Thus, even on this count, the order of detention is vitiated.

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Hence, the Petition must succeed and we pass the following

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order:

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ORDER :

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(a) The Rule is made absolute in terms of prayer clause

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(c).

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(SMT.SADHANA S. JADHAV, J ) ( A.S. OKA, J )

Swapnil Sanjay Tahsildar v. the District Magistrate Kolhapur and Ors.

Case brief

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Swapnil Sanjay Tahsildar v. the District Magistrate Kolhapur and Ors.

Case brief

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