Allowed

Sachin@Tarzan Subhash Chavan v. the State of Maharashtra and Anr.

Bombay HC7 Oct 2021WP/2766/2021

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging a preventive detention order under the MPDA Act. The court quashed the order due to the Detaining Authority's failure to record subjective satisfaction on the truthfulness of in-camera statements and insufficient proximate evidence from past crimes to justify detention.

What did the court decide?

The impugned order of preventive detention dated 14th June 2021 is quashed and set aside. The petitioner is ordered to be set at liberty forthwith.

Sachin@Tarzan Subhash Chavan Vs the State of… — Pension and Retirement Benefits | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Digitally signed by SHRADDHA CRIMINAL WRIT PETITION NO. 2766 OF 2021 SHRADDHA KAMLESH KAMLESH TALEKAR TALEKAR Date: 2021.10.07 Sachin @ Tarzan Subhash Chavan 14:24:02 +0530 Aged : 28 years, Occ. : Agriculturist, R/o. - Malbhag, Walva, Tal. - Walva, Dist. - Sangli.

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CRIMINAL WRIT PETITION NO. 2766 OF 2021

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At present Sangli District Jail ...Petitioner

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Versus

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The State of Maharashtra.

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Collector, Sangli. Add. : Sangli Miraj Road, Vijay Nagar, Sangli,

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Senior Police Inspector, Ashta Police Station, Sangli ...Respondents

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Mr. Priyal G. Sarda for the petitioner.

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Mr.J.P. Yagnik, APP for the respondents.

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CORAM : S.S. SHINDE &

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N.J. JAMADAR, JJ.

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Reserved for Judgment on : 23^rd September 2021 Judgment Pronounced on : 7^th October 2021.

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******

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JUDGMENT (PER N.J. JAMADAR, J.) :

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Rule. Rule made returnable forthwith and, with the consent

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of the learned counsels for the parties, heard fnally.

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By this petition under Article 226 of the Constitution of

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India, the petitioner, who is preventively detained by an order

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Shraddha Talekar, PS

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dated 14^th June 2021, passed by District Magistrate, Sangli, under section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers,Drug-offenders, Dangerous persons and video pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (for short, ‘MPDA Act’) has assailed the legality and validity of the detention order.

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The petitioner, who is a resident of Walva, has allegedly proven himself a dangerous person and taken to a life of criminality. The petitioner created a reign of terror in the area falling within the local limits of Ashta Police Station, and thereby became a perpetual danger to the maintenance of public order in the said area. Noting the criminal antecedents of the petitioner including the latest crime registered against the petitioner vide C.R. No.90/2021 with Ashta Police Station for the offences punishable under sections 307, 143, 147, 148, 149, 323, 504 and 506 of the Penal Code, sections 4 and 25 of Arms Act, 1959 and section 135 of the Maharashtra Police Act, 1951, and the statements of witnesses recorded in-camera, the respondent No.2Detaining Authority recorded a subjective satisfaction that the petitioner was a dangerous person within the meaning of section 2(b-1) of the MPDA Act and it was necessary to detain the

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Shraddha Talekar, PS

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petitioner by invoking the provisions contained in section 3(2) of the MPDA Act in order to prevent him from acting in a manner prejudicial to the maintenance of public order.

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Grounds of detention were served on the petitioner on 14^th June 2021. Post opinion of the Advisory Board, the order of detention came to be confrmed by the State-respondent No.1 on 16^th July 2021.

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The petitioner has assailed the legality and validity of the detention order by raising multi-fold grounds. An affdavit in reply is fled by Dr. Abhijeet Chaudhari, District Magistrate, Sangli resisting the grounds raised in the petition. An affdavit in reply is also fled on behalf of the State.

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In the backdrop of the aforesaid pleadings, we have heard Mr. Priyal Sarda, the learned counsel for the petitioner, and Mr. J.P. Yagnik, the learned APP for the respondents, at length. With the assistance of the learned counsels for the parties, we have also perused the material on record including the grounds of detention and the documents furnished to the petitioner therewith.

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Shraddha Talekar, PS

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Though the petitioner took a slew of exceptions to the impugned detention order, yet, while canvassing the submissions, Mr. Sarda, the learned counsel for the petitioner, restricted the challenge to two grounds, principally. First, the impugned order suffers from the vice of not recording a subjective satisfaction by the Detaining Authority that the incidents narrated in the incamera statements were truthful. The failure to record such subjective satisfaction, according to Mr. Sarda, erodes the value of those statements and renders them unworthy of consideration as the material on the strength of which the detention order could have been passed. Second, according to Mr. Sarda, the necessary corollary of exclusion of in-camera statements from consideration is that the detention order rests on the solitary crime registered against the petitioner at Ashta Police Station, bearing C.R. No.90/2021 for the offences punishable under sections 307, 143, 147, 148, 149, 323, 504 and 506 of the Penal Code, sections 4 and 25 of Arms Act, 1959 and section 135 of the Maharashtra Police Act, 1951. In the backdrop of the nature of the accusation therein, by no stretch of imagination, according to Mr. Sarda, the acts attributed to the petitioner can be said to be prejudicial to the maintenance of public order and, resultantly, the solitary crime

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Shraddha Talekar, PS

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cannot sustain the order of preventive detention.

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Mr. Yagnik, the learned APP, on the other hand, would urge that the ground of failure to record subjective satisfaction regarding truthfulness and genuineness of the statements of witnesses recorded in-camera does not deserve countenance as there is material on record to demonstrate that after the statements of those witnesses were recorded by the Police Inspector, Ashta Police Station on 3^rd April 2021, the SubDivisional Police Offcer had verifed the truthfulness and correctness thereof on 12^th July 2021 and made endorsements overleaf those statements. Inviting the attention of the Court to the said endorsements made by the said Sub-Divisional Police Offcer, Mr. Yagnik, strenuously submitted that all the elements which support an inference of satisfaction regarding the truthfulness and correctness of the incidents narrated in the statements of witnesses, have been explicitly made out, in the case at hand

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We have perused the statements of confdential witnesses. Indeed, overleaf the statements, there are endorsements by the Sub-Divisional Police Offcer, City Division, Sangli to the effect

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Shraddha Talekar, PS

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that the witnesses appeared before him; the contents of the statements were read over to them; they admitted the truthfulness of those statements and the said enquiry with those witnesses made him to believe that the incidents narrated by those witnesses were true. It would be contextually relevant to note that the Detaining Authority made an endorsement on the said statements as “opened and verifed by me on 14^th June 2021 at 2:00 P.M.” . In the backdrop of the aforesaid facts, the pivotal question which crops up for consideration is whether the Detaining Authority arrived at the subjective satisfaction about the truthfulness and correctness of the statements of the witnesses recorded in-camera.

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Before we advert to explore an answer to this question, in the facts of the instant case, it may be apposite to note that it is now well neigh settled that there is no embargo in arriving at the subjective satisfaction regarding the activities of the detenu being prejudicial to the maintenance of public order on the strength of the in-camera statements. A proftable reference, in this context, can be made to a judgment of the Supreme Court in the case of Smt. Phulwari Jagdambaprasad Pathak Vs. Shri R.H. Mendonca

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Shraddha Talekar, PS

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& Ors.¹ , wherein the Supreme Court dealt with the challenge based on the unreliability of the in-camera statements to arrive at the subjective satisfaction for the preventive detention. Repelling the challenge, the Supreme Court expounded the legal position in the following words :

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“16 Then comes the crucial question whether 'in- camera' statements of persons/witnesses can be utilised for the purpose of arriving at subjective satisfaction of the detaining authority for passing the order of detention. Our attention has not been drawn to any provision of the Act which expressly or impliedly lays down the type of material which can form the basis of a detention order under section 3 of the Act. Preventive detention measure is a harsh, but it becomes necessary in larger interest of society. It is in the nature of a precautionary measure taken for preservation of public order. The power is to be used with caution and circumspection. For the purpose of exercise of the power it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act. It is suffcient if from the material available on record the detaining authority could reasonably feel satisfed about the necessity for detention of the person concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. In the absence of any provision specifying the type of material which may or may not be taken into consideration by the detaining authority and keeping in view the purpose the statute is intended to achieve the power vested in the detaining authority should not be unduly restricted. It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. Presumably, that is why the Parliament did not make any provision in the Act in that regard and left the matter to the discretion of the detaining authority. However, the facts stated in the materials relied upon should be true and

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1 2000 All MR (Cri.) 1503 (S.C.)

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Shraddha Talekar, PS

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should have a reasonable nexus with the purpose for which the order is passed.”

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(emphasis supplied)

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The aforesaid pronouncement makes it explicitly clear that the in-camera statements of witnesses can form the foundation of an order of preventive detention. What is of material signifcance is the last sentence in the aforesaid paragraph which warrants that the Detaining Authority ought to be satisfed that the facts stated in the materials relied upon should be true and should have reasonable nexus with the purpose for which the order is passed. A satisfaction of the truthfulness and correctness of the statements of the witnesses recorded in-camera is insisted upon as an unverifed statement has the propensity to curtail the cherished personal liberty of the detenu.

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The import of the aforesaid pronouncement of the Supreme Court was further expounded by a Division Bench of this Court in the case of Smt. Vi j aya Raju Gupta Vs. Shri R.H. Mendonca & Ors.² . The Division Bench held that the necessary corollary of aforesaid pronouncement of the Supreme Court is that the Detaining Authority must be satisfed about the truthfulness of the statements made in the in-camera statements. It was further

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2 2001 All MR (Cri) 47.

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Shraddha Talekar, PS

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held that the Detaining Authority has to apply its mind about the truthfulness of the assertions made in in-camera statements. The observations in paragraph 6 are material and hence extracted

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below :

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“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 satisfed about the truthfulness of the statements made in the in-camera statements. Testing it from this touch stone, we fnd that neither in the detention order nor in the grounds of detention, the Detaining Authority has stated anything that he was satisfed about the truthfulness of the statements made in in-camera statements. In the present case the petitioner has set up specifc case that in-camera statements were false and fabricated after the detenu was released on ball. The Detaining Authority in his frst affdavit fled on 13.4.2000 has only denied that false and fabricated statements were recorded after the detenu was released on 3.7.1999. While denying that the documents were fabricated, the Detaining Authority in his aforesaid affdavit has further stated that the in camera statements were verifed by the higher grade Police Offcer of the rank of A.C.P. As a matter of fact, in two subsequent affdavits, this stand has been reiterated and further statement has been made that he was subjectively satisfed that the contents of the in-camera statements were true and genuine since it was verifed by the Assistant Commissioner of Police. The English translation of the verifcation made by the Assistant Commissioner of Police below the in-camera statements, reads, "my statement was translated to me in Hindi which is in accordance with what I stated. "This means that the Assistant Commissioner of Police has only verifed that

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Shraddha Talekar, PS

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the statement made by the witness was recorded as actually made by him. Therefore on the basis of mere verifcation, without there being something more by way of contemporaneous document or material more over when no such statement is made in the grounds of detention that the statements made in the in-camera statement were believed to be true, it is very diffcult to hold that the Detaining Authority was in fact subjectively satisfed that the assertions made in incamera statements were true. The Detaining Authority has to apply his mind about the truthfulness of the assertions made in in-camera statements which in the facts of the present case seems to have not been done which in our opinion vitiates the detention order. ”

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In the light of the exposition of the aforesaid legal position, reverting to the facts of the case at hand, in our view, the satisfaction recorded by the Detaining Authority, which is of critical signifcance, appears to be infrm. In the grounds of detention, as regards the subjective satisfaction of the Detaining Authority about the truthfulness of the statements of the confdential witnesses, the Detaining Authority has recorded as under :

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“ The statements of the witnesses are verifed by Sub Divisional Police Offcer, City Division, Sangli, who is a gazetted offcer and I also verifed these witnesses and I am satisfed for the same.”

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Evidently, the aforesaid satisfaction recorded by the Detaining Authority does not commend itself for reasons more than one. Firstly, the endorsements made by the Detaining

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Shraddha Talekar, PS

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Authority that the statements were opened and verifed on 14^th June 2021 does not record that the witnesses were present before the Detaining Authority on 14^th June 2021. Thus, the assertion in the aforesaid statement that the Detaining Authority also verifed those witnesses is not borne out by the record. Secondly, the Detaining Authority has not in terms recorded that upon perusal of the statements of the witnesses recorded in-camera and verifcation thereof, by the superior police offcer, it formed an opinion that the incidents narrated therein were true and correct. Thirdly, the emphasis seems to be on the factum of verifcation by the superior police offcer and satisfaction about the said verifcation. What is conspicuous by its absence is the satisfaction about the truthfulness of the statements of confdential witnesses. In this view of the matter, we fnd considerable substance in the submission of Mr.Sarda, the learned counsel for the petitioner, that the impugned detention order is vitiated on account of want of subjective satisfaction regarding the truthfulness and correctness of the incidents narrated by the witnesses, whose statements were recorded in-camera.

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The second limb of the submission of Mr. Sarda that once the in-camera statements are eschewed from consideration, the

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Shraddha Talekar, PS

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detention order rests on C.R. No. 90/2021, and thus becomes vulnerable, also appears will merited. In the grounds of detention, the Detaining Authority has primarily banked upon C.R. No. 90/2021, registered with Ashta Police Station, on 4^th March 2021 and the aforestated in-camera statements of witnesses.

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In the aforesaid backdrop, Mr. Sarda placed reliance on a Division Bench judgment of this Court in the case of Mrs. Zabin Salim Hamja Shaikh Vs. Shri A.N. Roy & Ors.³ . In the facts of the said case, where the satisfaction regarding the veracity of the incamera statements was found to be infrm, the Division Bench observed that if there is no material to accept the veracity of these in-camera statements, in the absence of the verifcation regarding the truthfulness of the incidents, what remains is only one crime and that alone, if taken into consideration, does not meet the requirements to call the detenu as a dangerous person

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We have perused the narration of facts in respect of C.R.No. 90/2021 in the grounds of detention and the copy of the frst information report therein furnished to the detenu. From the perusal thereof, it becomes explicitly clear that the frst informant

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3 2006 All MR (Cri) 3324

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Shraddha Talekar, PS

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therein was accused of having committed the murder of a person and thus the brothers of the deceased had a grudge against the frst informant, on the said count. On the day of occurrence, i.e., 4^th March 2021, the brothers of the deceased alongwith the petitioner and others allegedly attacked the frst informant by deadly weapons, on account of the said enmity. Apart from the petitioner, there were allegedly fve more assailants. The genesis of the said occurrence was thus in the inimical relations between the frst informant and the assailants, over a previous murder. In this view of the matter, the solitary crime registered at Ashta Police Station at C.R. No. 90/2021 may properly fall in the ambit of a law and order problem. It may not satisfy the description of such a conduct which had the potentiality to disturb the even tempo of life of ordinary citizens.

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In paragraph No. 6 of the grounds of detention, the Detaining Authority has referred to two crimes apart from C.R. No. 90/2021 to arrive at the satisfaction that the petitioner is a dangerous person. The frst one is C.R. No. 118/2016 registered at Ashta Police Station for the offences punishable under sections 392, 393, 341, 323, 504 and 506 read with 34 of the Penal Code. The second is C.R. No. 159/2019 registered at Ashta Police Station

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Shraddha Talekar, PS

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for the offences punishable under sections 324, 504 and 506 read with 34 of the Penal Code. Evidently, C.R. No.118/2016 was registered against the petitioner prior to fve years. The element of live link between the said occurrence and the impugned action of preventive detention thus got snapped.

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It is well recognized that the potentiality of the future acts, which may turn out to be prejudicial to the maintenance of public order, is judged on the basis of the past actions and conduct of a detenu. Hence, the test of proximity assumes signifcance. It seems that in the grounds of detention, the above-numbered two crimes were referred to, with a view to demonstrate the habitual criminal activities of the detenu. However, the time lag of almost fve years, in between registration of C.R.No.118/2016 and the action of preventive detention, militates against the potentiality of prejudicial conduct in future, to prevent which the order of detention was passed.

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The upshot of the aforesaid consideration is that the subjective satisfaction arrived at by the Detaining Authority is vitiated. In the circumstances of the case, the extreme order of preventive detention which impinges upon the personal liberty of

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Shraddha Talekar, PS

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