Allowed

Lakhan Jambu Chougule @ Dayawan Dada v. the District Magistrate and Ors.

Bombay HC13 Apr 2017WP/4362/2016

Case brief

AI extract

What is this about?

Court quashed a detention order under the Maharashtra MPDA Act due to non-application of mind. The detaining authority gave contradictory grounds: the opening paragraph cited incamera statements, while the subjective satisfaction paragraph cited registered criminal cases, confusing the detenu.

What did the court decide?

Petition allowed; rule made absolute in terms of prayer clause (b) to quash the detention order.

Lakhan Jambu Chougule @ Dayawan Dada Vs the… — Pension and Retirement Benefits | Bombay HC (2017)

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jdk

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10.crwp.4362.16.j.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 4362 OF 2016

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Lakhan Jambu Chougule @	]
Dayawan Dada, Age 26 years	]
Residing at Juni Wadar Galli	]
Pandharpur, Taluka Pandharpur	]
Dist. Solapur	].. Petitioner
Vs.
1. The District Magistrate, Solapur	] ]
2. The State of Maharashtra	]
(Through Addl. Chief Secretary	]
to Government of Maharashtra	]
Mantralaya, Home Department,	]
Mantralaya, Mumbai) 3. The Superintendent,	] ] ]
Yerawada Central Prison,	]
Pune.	]..Respondents

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Mr. Udaynath Tripathi Advocate for Petitioner

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Mrs. M.H.Mhatre, A.P.P. for the Respondents

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CORAM : SMT.V.K.TAHILRAMANI &

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M.S.KARNIK, JJ.

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DATED : APRIL 13, 2017

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

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1 Heard both sides.

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2 The petitioner / detenu – Lakhan Jambu Chougule has assailed the detention order dated 21.10.2016 passed against him by the Respondent No.1 i.e. District Magistrate, Solapur. The said detention order has been passed in exercise of powers under Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons & Video Pirates, Sand Smugglers and Persons engaged in Black-Marketing of Essential Commodities Act, 1981 (Mah. Act No. LV of 1981), (Amendment – 2009), (Amendment – 2015) (hereinafter referred to as “MPDA Act”). The order of detention has been passed on the basis of three incamera statements of witnesses "A", "B" and "C". The order of detention, grounds of detention along with accompanying documents were served on the detenu on 21.10.2016.

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3 Though a number of grounds have been raised in this petition, Mr. Tripathi has urged only one ground before us which is raised in ground 5(b) of the petition. The said ground briefly states that in the opening para of the grounds of detention, it is clearly stated that the detaining authority is hereby communicating to the detenu the grounds as mentioned in paragraph 4(a) to 4(c) on which the order of detention has been issued against the detenu. These paras refer to 3 incamera statements. It is thus, clear from the opening para that the detaining authority has only relied on the 3 incamera statements to issue the order of detention and he had not relied on any other material to issue the order of detention. However, paragraph 7 of the grounds of detention where the subjective satisfaction of the detaining authority is stated, is as under:

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“After considering the offences mentioned in Para No.3(1) to 3(12) which has been committed by you, I am of the opinion that there will be harm to public

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order due to your criminal activity. Therefore, it is necessary that you should be detained under the provisions of M.P.D.A. Act, 1981”.

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4 Mr. Tripathi submitted that the detaining authority in the first paragraph of the grounds of detention has specifically stated that the detention order has been issued by him on the basis of the 3 incamera statements, however, in the subjective satisfaction expressed by the detaining authority in paragraph 7 of the grounds of detention, there is no reference at all to the incamera statements but there is a reference only to offences mentioned in paragraphs 3(1) to 3(12). In para 7, it is categorically stated that it is necessary to detain the detenu in view of the offences mentioned in para 3(1) to 3(12). This means that the detention order was issued on the basis of offences mentioned in paras 3(1) to 3(12). Paragraph 7 where the subjective satisfaction is expressed, clearly shows that the detaining authority found it necessary to detain the petitioner -

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detenu on the basis of the facts which are mentioned in the grounds of detention in paragraphs 3(1) to 3(12). Paragraphs 3(1) to 3(12) are 12 criminal cases which have been registered against the detenu. On going through the grounds of detention, we have noticed that indeed in the first paragraph of the grounds of detention, it is stated that the detention order is based on the 3 incamera statements whereas the para in which the subjective satisfaction is expressed, shows that the detention order has been issued, not on the basis of the 3 incamera statements but on the basis of the 12 criminal cases registered against the detenu which are reflected in paragraphs 3(1) to 3(12).

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5 From the above, it is clear that the detaining authority has taken contradictory stand. The reply to ground 5 (b) is even more confusing. In the grounds of detention in paragraph 7 it is stated that it is necessary to detain the detenu on the basis of criminal cases registered against the detenu which are

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found in paragraphs 3(1) to 3(12) of the grounds of detention. However, in the affidavit dated 27.2.2017 filed by the detaining authority, it is stated that “I have not considered or relied upon the 12 registered cases against the detenu while arriving at subjective satisfaction. I say that the material mentioned in paras 3(1) to 3(12) is a past criminal history of the detenu and the same is placed before me in order to point out the propensity and potentiality of the detenu towards criminality and his prejudicial activities in which he has started his career, when he was 20 years old “. Thus, the reply shows that the detaining authority has not relied on the 12 criminal cases mentioned in paras 3(1) to 3(12) and these cases are mentioned in grounds of detention by way of past history only. However, para 7 of the grounds of detention state that it is necessary to detain the detenu on considering the offences in paras 3(1) to 3(12) of the grounds of detention.

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6 The learned A.P.P. pointed out that in reply to ground

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5(a), the detaining authority has stated that the detaining authority while issuing the order of detention has taken into consideration three incidents relating to the incamera witnesses. However, on going through the grounds of detention, it is true that in the first para the detaining authority has stated that he has issued the order of detention on the basis of 3 incamera statements, however, in the very same grounds of detention, a contradictory stand is taken in paragraph 7 where the subjective satisfaction is expressed by the detaining authority. This paragraph clearly shows that the detention order has been issued on the basis of 12 criminal cases registered against the detenu. The details of these cases are found in paragraphs 3(1) to 3(12) of the grounds of detention. In these circumstances, we are satisfied that it is the clear-cut case of non-application of mind on the part of the detaining authority.

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7 Though, no doubt, the Courts exercising powers of

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judicial review do not consider the challenge to an order of detention as if on an appeal re-appreciating the materials, yet since an order of detention in prison involves the fundamental rights of the citizen, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the respondents as to the decision arrived at and it is open to the Courts to see whether there has been due and proper application of mind. In the present case, there is clear nonapplication of mind on the part of the detaining authority. Thus, the order of detention suffers from a serious infirmity which goes to the root of the matter.

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8 The liberty of the subject being an extremely precious right, where any infraction of such a right is involved, the Court must act as a watchdog and a sentinel on the qui vive to see that every benefit of the lacuna goes to the detenu. On account of contradictory stand taken by the detaining authority, it is bound to create serious confusion in the mind of the detenu

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which would come in his way of making an effective representation. The confusion is further compounded by the stand taken by the detaining authority in his affidavit in reply which we have adverted to above.

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9 In view of the above facts, this petition deserves to

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be allowed. Accordingly, it is allowed. Rule is made absolute in terms of prayer clause (b).

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[ M.S.KARNIK, J.] [ SMT.V.K.TAHILRAMANI,J. ]

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kandarkar

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Lakhan Jambu Chougule @ Dayawan Dada v. the District Magistrate and Ors.

Case brief

What is this about?

What did the court decide?

Lakhan Jambu Chougule @ Dayawan Dada v. the District Magistrate and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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