Dismissed

Vaibhav @ Pintya Bharat Mane v. the Commissioner of Police and Ors.

Bombay HC29 Aug 2016WP/1948/2016

Case brief

AI extract

What is this about?

This court dismissed a writ petition challenging a detention order passed under the MPD&DP Act. The court held that the detaining authority had sufficient material for subjective satisfaction regarding the petitioner's threat to public order across specified areas. It further ruled that non-supply of unrelied-upon documents with minor English stamps did not violate Article 22(5) as they were not v

What did the court decide?

Petition dismissed; Rule discharged. Detention order upheld.

Vaibhav @ Pintya Bharat Mane Vs the… — Pension and Retirement Benefits | Bombay HC (2016)

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RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1948 OF 2016

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Vaibhav @ Pintya Bharat Mane

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Age - 32 Years, Residing at 276, Somwar Peth, Pune.

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( At present lodged in Nasik Road Central Prison, Nasik. )

.. Petitioner

(Detenu)

Versus

1. The Commissioner of Police,

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Pune.

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2. The State of Maharashtra

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(Through Addl. Chief Secretary to Government of Maharashtra, Mantralaya, Home Department, Mantralaya, Mumbai.)

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3. The Superintendent

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Kolhapur Central Prison, Kolhapur. .. Respondents

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Appearances

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Mr. Udaynath Tripathi Advocate for the Petitioner Mr. J.P. Yagnik APP for the State

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CORAM : SMT. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ.

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DATE : AUGUST 29, 2016.

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ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

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Heard learned Advocates for the parties.

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The petitioner / detenu - Vaibhav @ Pintya Bharat

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Mane, by way of this petition, has raised the challenge to the order of detention dated 23.11.2015 passed by respondent

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No. 1 - the Commissioner of Police, Pune under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981 ('M.P.D.A. Act' for short). The detention order along with grounds of detention and the accompanying documents

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have been served on the detenu. The detention order has been issued on the basis of three C.Rs. and two in-camera statements of witnesses A & B. The three C.Rs. are C.R. No. 3076/2015 of Khadak Police Station, C.R. No. 100/2015 of Samarth Police Station and C.R. No. 133/2015 of Samarth Police Station. C.R. No. 3076/2015 is mainly under Section 3 read with 25 of the Arms Act and C.R. No. 100/2015 and 133/2015 are mainly under Section 384 of IPC.

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Though in the present petition, a large number of

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grounds have been raised from Ground Nos. 8(a) to 8(m), Mr. Tripathi has pressed only four grounds before us i.e Ground Nos. 8(h), 8(d), 8(i) and 8(m). The first ground i.e ground No.

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8(h) reads as under:-

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8(h) The petitioner says and submits that the detaining authority has recorded his satisfaction in para 7 of the grounds of detention, that the petitioner has unleashed a reign of terror and has become a perpetual danger to the Society at large in the area of Faraskhana, Khadak and Samarth Police Stations, whereas in C.R. No. 133 of 2015, incident took place in Somwarpeth, Pune and in C.R. No. 100 of 2015, the incident took place in Rastapeth, Pune. This shows total non-application of mind of the detaining authority. The order of detention is illegal and bad-in-law, liable to be quashed and set aside.

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Mr. Tripathi stated that none of the incidents relate to

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Samarth Police Station or Faraskhana Police Station, hence, subjective satisfaction recorded by the detaining authority in paragraph 7 of the grounds of detention that the petitioner has unleashed a reign of terror and has become a perpetual

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danger to the society at large in the areas of Faraskhana,

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Khadak and Samarth Police Stations shows non-application of mind.

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In reply, the learned APP pointed out that detention

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order is based on three C.Rs.. Two of the C.Rs. are of Samarth Police Station and one C.R. is of Khadak Police Station. In addition, the detention order is based on two in-

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camera statements of Witnesses A & B. In the grounds of detention, in relation to in-camera witness 'B', it is stated as under:-

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" The witness stated that he is acquainted with you. You do not do any work. You along with your two to three accomplices threaten petty businessmen and passersby and even extort money from them. You have created a reign of terror in Somwar peth, Nana peth, Rasta peth, Bhavani peth and Mangalwar peth areas of Pune City."

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The statement of in-camera witness 'B' has been furnished to the detenu. In the said statement, witness 'B'

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has clearly stated that the detenu has created a reign of terror in Somwar peth, Nana peth, Rasta peth, Bhavani peth and Mangalwar peth. It is an uncontroverted fact that Somwar peth and Rasta peth fall within the jurisdiction of

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Samarth Police Station and the boundaries of Khadak and Faraskhana Police Station are attached to Samarth Police Station. It is further not controverted that Bhavani peth falls within the jurisdiction of Samarth Police Station as well as Khadak Police Station. It is also not denied that Mangalwar peth falls within Samarth Police Station and Faraskhana Police Station. The statement of in-camera

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witness 'B' was placed before the detaining authority. Truthfulness and genuineness of the statement had been verified by the Senior Police Official of the rank of A.C.P. The detaining authority relied on this statement and copy of the said statement has been furnished to the detenu. Thus, even though C.R. Nos. 133/2015 and 100/2015 pertain to Samarth Police Station and C.R. No. 3076/2015 pertains to Khadak Police Station, there was sufficient material before the detaining authority to be subjectively satisfied that the activities of the detenu were such that he had unleashed a reign of terror and had become a perpetual danger to the society at large in the area of Faraskhana, Khadak and

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Samarth Police Stations. Thus, we find no merit in the submission that there was non-application of mind on the part of the detaining authority.

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Mr. Tripathi in relation to ground 8(h) placed reliance on

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a decision of this Court in the case of Vijaya Ganesh Gajare

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Vs The Commissioner of Police, Pune & Ors.¹ to which one of us was a party. Mr. Tripathi placed reliance on paragraphs 3 to 6 thereof. In the said case, the detention order was based on two C.Rs. and two in-camera statements only pertaining to Hadapsar Police Station, however, the detaining authority recorded its subjective satisfaction that the detenu had unleashed a reign of terror and had become perpetual danger to the society at large in the areas of Kondhawa, Wanawadi and Hadapsar Police Stations. In the said case, there was no material at all in relation to the detenu being a danger in the areas of Kondhawa and Wanawadi Police Station, hence, the

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detention order was quashed on account of non-application

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1 Criminal W.P. No. 5052 of 2015 decided on 6.5.2016. (Coram : V.K. Tahilramani & Anuja Prabhudessai, JJ.)

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of mind. However, in the present case, there is material to

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show that the activities of the detenu affected not only the people in the jurisdiction of Samarth Police Station but also Khadak and Faraskhana Police Station. Thus, this decision would not apply to the facts of the present case.

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Mr. Tripathi submitted that as far as Khadak Police

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Station is concerned, only one C.R. pertains to Khadak Police Station which is C.R. No. 3076/2015 and the said C.R. only relates to possession of unlicensed country made pistol and cartridge by the petitioner, hence, there is no question of public order being disturbed on account of the said C.R., hence, the same could not have been taken into consideration by the detaining authority. Hence, the detention order is illegal and liable to be quashed.

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The facts relating to C.R. No.3076/2015 show that the petitioner / detenu was found in possession of one country made pistol and cartridge in front of Gaurav Biryani House

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which is situated at Shukrawar Peth, Pune. The Detaining Authority in its return has stated that Shukrawar Peth is a crowded area even at night. Possessing and carrying unlicensed firearm in a public place by a person is bound to affect public order. Assuming for the sake of argument that the incident relating to this C.R. does not affect public order, the detention order is based on five grounds i.e three C.Rs. and two in-camera statements. If with the help of Section 5A, the ground relating to C.R. No. 3076 is severed, the detention order would still be sustainable.

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In the next ground raised by Mr. Tripathi i.e ground 8(i), it is stated that in relation to in-camera statement of witness 'A' in the grounds of detention, no area is disclosed,

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therefore, the ground is vague disabling the petitioner from making an effective representation. In the in-camera statement also no area is mentioned, hence, such a vague statement cannot be considered for passing order of detention. Thus, the order of detention is illegal and bad in

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law, liable to be quashed and set aside.

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A detenu would make a representation based on the detention order, grounds of detention and the documents furnished to him along with the grounds of detention. No detenu makes a representation after only going through the grounds of detention. The detaining authority need not state

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all details in the grounds of detention provided that

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particulars sufficient to make an effective representation are furnished to the detenu. We have perused the statement of in-camera witness 'A'. Admittedly, a copy of the statement of in-camera witness 'A' has been furnished to the detenu. In his statement, witness 'A' has stated that his shop is situated at Somwar peth. This witness has stated that on account of terrorizing activities of the detenu, the residents in that area and big and small businessmen were terribly scared of the detenu. Witness 'A' has further stated that on 1.9.2015 at about 7.00 p.m. when he was in his shop at Somwar peth, he

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saw persons running helter-skelter in frightened condition,

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hence, he came out of his shop and made inquiries with one

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person. That person told witness 'A' that the detenu and his associates holding sickle and big knife had come in the area and on account of fear, people were running away. On hearing this, witness 'A' also got frightened and started closing his shop. At that time, the detenu and his associates came near him. The detenu caught hold of the collar of witness 'A' and abused him. The detenu told this witness to pay him Rs. 10000/-. The witness 'A' informed the detenu that he did not have such a big amount with him. Thereupon, the detenu and his associates got angry and started assaulting and abusing witness 'A'. The detenu then took out a knife from his waist and forcibly took away Rs. 5000/- from the pocket of witness 'A'. Thereafter, the detenu threatened witness 'A' that if witness 'A' told about this fact anyone, he would be killed.

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Admittedly, the statement of witness 'A' has been furnished to the detenu. This statement clearly shows that

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the incident pertaining to witness 'A' took place in Somwar

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peth. In such case, it cannot be said that the in-camera statement is vague. The in-camera statement has been rightly relied upon by the detaining authority. Thus, the area where the incident took place was disclosed to the detenu and as such, the right of detenu to make an effective representation was not at all affected.

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The next ground relied upon by Mr. Tripathi is ground

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8(m) which reads as under:-

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8(m) The petitioner says and submits that he is a Maharashtrian and is able to read, write and understand Marathi only. He has working knowledge in Marathi and no other language. The detaining authority has supplied Marathi documents in the compilation to enable him to make effective representation. The petitioner says and submits that there are three documents at page Nos. 127, 109 and 111 of the compilation of documents, where judicial orders and affidavits made by J.M.F.C. Court No. 1, Pune is found to be passed in English language, these documents are judicial orders and relied on documents. They are vital and moreover these documents are placed before the detaining authority and are considered by the said authority whereas no translation of these documents are furnished to the petitioner thereby the petitioner is deprived of making effective representation.

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As far as this ground is concerned, there are two

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aspects. The first aspect is that the three documents i.e

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page 109, page 111 and page 127 are in Marathi except for a small portion of the document which are rubber stamps, the contents of which are in English. This is a very small portion which is in English and no translation has been furnished of this small part. The said ground is replied by

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the detaining authority in paragraph 18 of his return. In the return, it is stated that the English language used at page Nos. 109, 111 and 127 is very simple English language. Moreover, the detenu has studied in S.V. Union High School in English Medium and he knows English language. The bail order of the detenu in C.R. No. 133/2015 is placed at page No. 124 and its Marathi translation is placed at Page No. 125

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of the copy given to the detenu. The detaining authority has relied on the bail order and not on the documents at page Nos. 109, 111 and 127. It has not denied on behalf of the detenu that he has studied in S.V. Union High School in English medium and he knows English. As the detenu knew

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English very well, it cannot be said that the right of the

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detenu to make an effective representation was affected.

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The second aspect is that none of these documents

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which are contained in the rubber stamp are documents which are vital to issue the order of detention. The detention order is not based on these documents. These rubber stamps pertain to the bail bonds. It is not denied that the bail applications and copy of the bail orders have been furnished to the detenu. These are the documents which have been relied upon by the detaining authority to issue the order of detention and admittedly, copies thereof have been furnished to the detenu. The aspect cannot be lost sight of that the detaining authority in his affidavit has clearly stated

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that he has not relied on the documents which are contained in the rubber stamp. It is well settled that the copies of the documents which are not relied upon by the detaining authority need not be furnished to the detenu. However, in this context, Mr. Tripathi relied on the decision of this Court

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in the case of Vijay Shrikrishna Padwal Vs. Union of

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India & Ors.² . In the said decision, it is stated that the detaining authority has to indicate which documents are relied upon by the detaining authority and if the documents

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are placed before the detaining authority, it would have been presumed that the detaining authority has referred to and relied upon the same. Mr. Tripathi pointed out that in the

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present case, the detaining authority has merely stated that the copies of the documents which were placed before the detaining authority are being furnished to the detenu. However, in a later decision of the Supreme Court in the case

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of Abdul Sathar Ibrahim Manik Vs. Union of India &

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Ors.³ , it is observed that when the detaining authority has merely referred to some documents in the narration of events and has not relied upon them, failure to supply such documents will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to such documents but also

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relied upon them in arriving at the subjective satisfaction to 2 Criminal W.P. No. 915 of 1989 decided on 26.10.1989 (Coram Jahagirdar & Nirgudkar, JJ) 3 AIR 1991 SC 2261

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issue the order of detention, then failure to supply these

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documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case, the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.

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If a document is relied upon, there would be a

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reference to it in the grounds of detention. In the present case, the detaining authority has not made any reference to the documents which are contained in the rubber stamp in the grounds of detention. In such case, it cannot be said that

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these documents are relied upon documents, especially as not even a passing reference has not been made by the detaining authority in the grounds of detention to these documents. This shows that these documents are not relied

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upon to issue the order of detention. Even otherwise looking

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to the nature of documents, it cannot be said that these

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documents were material or vital to the passing of detention order.

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14. The Supreme Court in the case of Ibrahim Ahmad

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Batti Vs. State of Gujarat & Ors.⁴ has observed in paragraph 7 that it is for the Court to decide whether the

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document is material or not. We have carefully gone through the documents which are contained in rubber stamps and in our opinion, they are not at all material or vital documents, hence, non-supply of such documents cannot be said to affect the right of the detenu to make an effective representation.

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15. The Supreme Court in the case of Abdul Sathar Ibrahim

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Manik (supra) also referred to the issue of prejudice to the

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detenu in making an effective representation. The Supreme

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Court in this context has observed that failure to supply the

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documents which are not relied upon by the detaining

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4 AIR 1982 SC 1500

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authority would not cause any prejudice to the detenu.

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Mr. Tripathi, thereafter, placed reliance on the decision

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of this Court in the case of Munna Dilawar Khan Vs. The Commissioner of Police, Mumbai & Ors.⁵ . In the said decision, reliance was placed on the decision of this Court in the case of Vijay Shrikrishna Padwal (supra) and similar view was taken as stated in para 12 above. We are afraid in view of the decision of the Supreme Court quoted in paragraph 12 above, we cannot follow the view taken in Vijay Padwal (supra) or any decision in which Vijay Padwal is relied upon. Thereafter, Mr. Tripathi pointed out that in addition in the case of Munna Dilawar Khan, this Court observed that it is well settled that as far as the right of detenu under Article 22(5) is concerned, the question of prejudice to the detenu is irrelevant. We have already observed earlier that the Supreme Court in the case of Abdul Sathar Ibrahim Manik (supra) has clearly held that non-supply of the documents

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which are not relied upon by the detaining authority to issue

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5 Criminal W.P. No. 3953 of 2013 decided on 6.1.2014 (

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the order of detention would not cause any prejudice to the

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detenu.

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The Supreme Court in the case of Kamarunnissa Vs.

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Union of India & Anr.⁶ has held that if document is not relied upon by the detaining authority to issue the order of detention, it need not be supplied to the detenu. In the said

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case, it was further observed that the detenu must show how non-supply affects his right. In the present case, it is not shown in what way, the contents in the rubber stamps have affected the right of the detenu to make an effective representation.

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As stated earlier, the detenu claimed that he is conversant only with Marathi language, however, it is pertinent to note that it is not denied that the detenu took his education in English language. Thus, the detenu was well aware of Marathi as well as English language. All the

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documents which have been supplied to the detenu are in

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