Allowed

Mrunali Virendra Lonare v. Commissioner of Police and Ors.

Bombay HC18 Mar 2014WP/245/2014

Case brief

AI extract

What is this about?

The Bombay High Court held that the preventive detention order was invalid because the detaining authority failed to record a subjective satisfaction regarding the truthfulness of in-camera statements and relied on incidents occurring eight months prior without sufficient nexus, quashing the detention.

What did the court decide?

The detention order dated 1st July 2013 issued under Section 3(1) of the MPDA Act was quashed and set aside, and the detenu was ordered to be released forthwith.

Mrunali Virendra Lonare Vs Commissioner of… — Pension and Retirement Benefits | Bombay HC (2014)

ash

wp-245.14(cri)-jt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO.245 of 2014

¶5

Mrs. Mrunali Virendra Lonare. .. Petitioner Vs Commissioner of Police and Others. .. Respondents

¶6

Shri U.N. Tripathi i/by Ms. Jayshree Tripathi for the Petitioner. Shri S.K. Shinde, Public Prosecutor for the Respondent-State.

¶7

CORAM : A.S. OKA & A.A. SAYED, JJ DATED : 18TH MARCH 2014

¶8

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

¶9

Heard learned counsel appearing for the Petitioner and the learned Public Prosecutor for the Respondents.

¶10

The Petitioner who is the wife of one Shri Virendra @ Gijrya, son of Suresh Lonare, challenges the order of preventive detention dated 1^st July 2013 passed by the Commissioner of Police, Nagpur under the provisions of Sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 ( for short “the said Act”).

¶11

ash

¶12

2 wp-245.14(cri)-jt

¶13

The learned counsel appearing for the Petitioner in support of this Petition has pressed into service mainly the three grounds which are set out in Clauses (b), (c) and (e) of the grounds in the Petition. His submission is that in-camera statements of two witnesses A and B have been relied upon by the detaining authority without recording any satisfaction that the detaining authority was satisfied about the truthfulness of the statements made in the in-camera statements. He urged that there are number of blanks in the copies of in-camera statements supplied to the detenu. Moreover, the statements are vague and it is vaguely described that the incident happened near a pan shop at Nagpur. His submission that there are hundreds of pan shops in every area of Nagpur city. As the in-camera statements are very vague, the detenu is deprived of making an effective representation against the order of detention. He urged that verification by the Assistant Commissioner of Police of the in-camera statements is illegal inasmuch as he has not recorded any satisfaction about the truthfulness of the statements. He placed reliance on the decisions of the Division Bench of this Court in the cases of Smt. Smt. Vijaya Raju Gupta vs. Shri R.H. Mendonca & Other s¹ and Mrs. Zabin Salim Hamja Shaikh v. Shri A.N. Roy & Others² .

¶14

2 2006 ALL MR (Cri) 3324.

¶15

1 2001 ALL MR (Cri) 48

¶16

ash

¶17

3 wp-245.14(cri)-jt

¶18

Learned Public Prosecutor submitted that even assuming that the in-camera statements of the witnesses A and B are required to be kept out of consideration, Section 5A of the said Act will save the impugned order inasmuch as perusal of the grounds of detention show that there are two offences registered against the Petitioner covered by Chapter XVI or XVII of the Indian Penal Code. He submitted that both the offences registered at a reasonable proximity of the date of passing of the order of preventive detention. Inviting our attention to the material portion of the grounds of detention, he urged that the instances relied upon by the detaining authority may not have immediate proximity with the date of the impugned order, but the same indicate the pattern of prejudicial activities of the detenu. He relied upon the observations made by the Apex Court in the case of Bhupendra Vs. State of Maharashtra³ . He urged that the subjective satisfaction of the detaining authority is based not only on the in-camera statements but also on the offences registered against the Petitioner on 25^th October 2012 and 27^th October 2012 which are referred to in Ground Nos.8.1 and 8.2 of the grounds of detention served upon the detenu. He, therefore, submitted that the impugned order of detention is legal and no interference is called for considering the propensity of the Petitioner.

¶19

We have given careful consideration to the submissions. It will be necessary to advert to the subjective satisfaction recorded by the 3 (2008)17 SCC 165

ash

wp-245.14(cri)-jt

detaining authority in Ground No.10 of the grounds of detention. Relevant part of the Ground No.10 reads thus:

¶24

“10. In light of the above offences and incidents mentioned in para No.8 to 9.2.2, I am subjectively satisfied that you are a dangerous person as defined under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Amendment of 2009). I am fully satisfied that your activities are extremely prejudicial to the maintenance of public order. You are a dangerous person causing harm and danger to public at large and the people living in that area are feeling insecure because of your desperate and criminal activities.”

¶25

We have perused in-camera statements of witnesses A and B. We find on careful perusal of the grounds of detention that the detaining authority has not at all recorded a subjective satisfaction that the incidents narrated in the in-camera statements were truthful. In Paragraph 6 of the decision in the case of Smt. Vijaya Raju Gupta (supra) , the Division Bench of this Court held thus:-

¶26

“6. There remains no doubt in the light of the law laid down by the Apex Court that in camera statement of person/witness can be utilised by the detaining authority for the purpose of arriving at subjective satisfaction for passing the order of detention. However, the Apex Court made it clear that the facts stated in the materials relied upon should be true and have a reasonable nexus with the purpose for which the order is passed. Necessary corollary, therefore is that the detaining authority must be satisfied about the truthfulness of the statements made in the in camera statements. Testing it from this touchstone, we find that neither in the detention order nor in the grounds of detention, the detaining authority has

¶27

ash

¶28

5 wp-245.14(cri)-jt

¶29

stated anything that he was satisfied about the truthfulness of the statements made in the in camera statements.”

¶30

( Underline added )

¶31

In the further part of the Paragraph 6 of the said decision, the Division Bench held that the detaining authority has to apply his mind to the truthfulness of the assertions made in the in-camera statements. In absence of a subjective satisfaction recorded in that behalf, the Division Bench held that the order of detention stood vitiated. In the present case, admittedly no such subjective satisfaction has been recorded by the Detaining Authority.

¶32

The order of detention is sought to be defended by the learned Public Prosecutor mainly relying upon Section 5A of the said Act that the order of detention is based on several grounds and the ground based on in-camera statements can be severed from other two grounds.

¶33

Apart from the incidents in the alleged in-camera

¶34

statements, perusal of the paragraph 8 of the grounds of detention show that only two incidents are relied upon i.e. C.R.No.280 of 2012 dated 25^th October 2012 and C.R.No.284 of 2012 dated 27^th October 2012. The reliance placed by the learned Public Prosecutor on the decision of the Apex Court in the case of Bhupendra (supra) will not

¶35

ash 6 wp-245.14(cri)-jt

¶36

help inasmuch as though the criminal record of the detenu starting from 1999 to 2012 is referred to in Paragraph 4 of the grounds of detention, the Paragraph 8 as well as the paragraph 10 of the grounds of detention clearly show that the offences noted in the ground No.4 of the grounds of detention have not been taken into consideration by the Detaining Authority for recording subjective satisfaction.

¶37

The impugned order of detention has been passed on 1^st July 2013 on the basis of these two incidents of 25^th October 2012 and 27^th October 2012. There is a gap of eight months between the date of passing of detention order and the date of the incidents.

¶38

Under Sub-section (1) of Section 3 of the said Act, an order of detention can be passed with a view to prevent a detenu from acting in any manner prejudicial to the maintenance of public order. Acting in the manner prejudicial to the maintenance of public order is defined in Clause (a) of Section 2 of the said Act. In the present case, the case of the detenu, going by the grounds of detention will fall in Clause (iv) which applies to a dangerous person. The term ‘dangerous person’ means 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 or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of

¶39

7 wp-245.14(cri)-jt

¶40

ash

¶41

the Arms Act, 1959. By taking the submission of the learned Public Prosecutor based on Section 5A of the said Act as correct, if the two incamera statements are kept out of consideration, the two other alleged offences which are considered by the detaining authority have been committed more than eight months prior to the date of passing of the order of detention. There is no live link between the incidents of October 2012 and the order of detention. Therefore, it is impossible to accept that by keeping the in-camera statements out of consideration, a subjective satisfaction could be recorded based on the said two incidents of 25^th October 2012 and 27^th October 2012 for passing the impugned order of detention on 1^st July 2013.

¶42

Therefore, we are of the considered view that the subjective satisfaction of the detaining authority stands vitiated and accordingly, the Petition must succeed and we pass the following order:

¶43

ORDER :

¶44

(i) The rule is made absolute in terms of prayer clause

¶45

(b), which reads thus:

¶46

“(b) That the order of detention being No. DET/M.P.D.A./Zone-IV/PCB/09/2013 dated 01.07.2013 issued under Section 3(1) of M.P.D.A. Act, 1981 by the Respondent No.1 against the detenu, abovenamed be quashed and set aside and on quashing the said order of detention the detenu be released forthwith.”

ash

wp-245.14(cri)-jt

(ii) All concerned to act upon an authenticated copy of

¶51

the operative part of this Judgment and Order.

¶52

(A.A. SAYED, J) ( A.S. OKA, J )