Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 1488 (BOM)

Sheikh Hasan s/o. Sheikh Husain Alias Nanika Hasan v. State of Maharashtra

2011-12-07

P.V.HARDAS, PRASANNA B.VARALE

body2011
P. V. HARDAS, J. :- This is a petition under Article 226 of the Constitution of India, by which the petitioner prays for issuance of a writ for quashing and setting aside the order of detention dated 15-3-2011, annexed to the petitioner as Annexure-D, passed by respondent No.2 and confirmed by the order dated 02-5-2011, by respondent No.1. The petitioner prays that after quashing the aforesaid orders, the petitioner be set at liberty. 2. The facts in brief, as are necessary for the decision of this petition, may briefly be stated thus :- The petitioner claims to a permanent resident of Amravati and is in business of providing building materials. The petitioner also claims to be a social worker taking part in active politics. On 01-3-2011 the Police Station Officer of Gadge Nagar Police Station, Amravati submitted a report to respondent No.2 for initiating action of detention against the petitioner under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as the "MDPAAct" for the sake of brevity). In support of the proposal for detention of the petitioner, Gadge Nagar Police Station, Amravati had referred to the several cases registered against the petitioner from 1990 till 2010. The petitioner further states that the Assistant Commissioner of Police processed the said proposal and the Deputy Commissioner of Police, Zone-1, Amravati then forwarded the proposal on the same lines on 04-3-2011 and 09-3-2011. Based on the aforesaid proposals, respondent No.2 passed the impugned order dated 15-3-2011 directing the detention of the petitioner under the provisions of the MPDA Act, by virtue of powers conferred by respondent No.2, by subsection (1) of Section 3 of the MPDAAct. The petitioner was accordingly taken into custody and sent to Amravati Jail on 15-3-2011. 3. The petitioner contends that he had submitted a representation on 39-3-2011 for quashing of the impugned order of detention. Ultimately, Advisory Board while considering another representation of the petitioner dated 25-4-2011 also recommended the detention of the petitioner. Meanwhile the Government also approved the detention of the petitioner. 4. The detention order is challenged by the petitioner and during the course of argument, the following grounds have been relied upon by the petitioner in support of his challenge to the impugned order. (a) The petitioner contends that the petitioner does not understand Marathi and only understand Hindi. Meanwhile the Government also approved the detention of the petitioner. 4. The detention order is challenged by the petitioner and during the course of argument, the following grounds have been relied upon by the petitioner in support of his challenge to the impugned order. (a) The petitioner contends that the petitioner does not understand Marathi and only understand Hindi. The documents which have been supplied to the petitioner, at least a majority of documents are in Marathi and consequently the petitioner was unable to understand the import of the documents and consequently his right to make an effective representation is grossly affected. The petitioner also contends that the documents, which have been provided to the petitioner, particularly photocopies of the documents, are illegible and therefore, the right of the petitioner to make an effective representation is affected. The petitioner, therefore, submits that the detention order is vitiated on this count alone. The learned A.P.P. initially tried to urge before us that the petitioner had submitted a representation and thus the right of the petitioner to submit an effective representative was not affected. However, the learned A.P.P. fairly conceded that assuming that the petitioner is correct that he does not understand Marathi and that the documents, at least majority of them are in Marathi and are not legible, the petitioner has succeeded in establishing this ground. The learned A.P.P. however contends that the detention is not based only on the basis of the crimes, which are registered against the petitioner, but the detention is based also on the basis of the in-camera statement and even if the petitioner is successful in urging before us that the documents are not in a language understood by him and the documents are not legible yet the detention order is not vitiated as the detention order can be justified on other grounds. The learned A.P.P. has placed reliance on the judgment of the Division Bench of this Court in Jafar Ahmed Alias Jafar Ahmed alias Jafar Fantoosh Mohamad Razzak Khan vs. M.N. Singh and others, 2002 Cri.L.J. 1723 : [2002 ALL MR (Cri) 788] and Santosh @ Dankya Subhash Gaikwad vs. D.N. Jadhav, Commissioner of Police & ors., 2005 All MR (Cri) 2722. The ratio of the aforesaid judgments is that in the light of Section 5-A of the MPDA Act, the detention would not be vitiated if the detention fails on one of the grounds but can be sustained on the other grounds. In the light of the ratio of the aforesaid judgments, therefore, according to us, though the petitioner has succeeded in establishing that the documents, which were provided to him, were not in the language understood by him and that the documents were not legible, the detention would not be vitiated on this ground alone if the detention order can be sustained on the other grounds. (b) Learned Counsel for the petitioner has urged before us that there is delay in forwarding the proposal from the last prejudicial activity and consequently there was no live link. The impugned order states that Crime No.6/2011 under Sections 147, 148, 149, 324 and 307 is alleged to have been committed by the petitioner on 02-1-2011. It also appears that the bail was granted to the petitioner. The petitioner was in police custody till 15-2-2011 and thereafter bail came to be granted. Thus, we find that there is no delay as such in forwarding the proposal from the last prejudicial activity of the petitioner. (c) Learned Counsel for the petitioner has urged before us that the detaining authority, particularly in the impugned order, has not recorded its subjective satisfaction about the truthfulness of the in-camera statement. The learned Counsel for the petitioner, therefore, urges before us that in the absence. of the subjective satisfaction of the detaining authority reflected in the detention order, the detention of the petitioner is vitiated. In support of this, learned Counsel for the petitioner has placed reliance on the judgment of the Division Bench of this Court in Smt. Vijaya Raju Gupta vs. R.H. Mendonca, Commr. of Police and others, 2001 Cri.L.J. 893 : [2001 ALL MR (Cri) 48]. In support of this, learned Counsel for the petitioner has placed reliance on the judgment of the Division Bench of this Court in Smt. Vijaya Raju Gupta vs. R.H. Mendonca, Commr. of Police and others, 2001 Cri.L.J. 893 : [2001 ALL MR (Cri) 48]. In the said judgment, the Division Bench of this Court by placing reliance on the judgment of the Supreme Court in Smt. Phulwari Jagdamba Prasad Pathak vs. R.H. Mendonca, AIR 2000 SC 2527 : [2000 ALL MR (Cri) 1503 (S.C.)] came to the conclusion that the verification of the in-camera statement done by the Assistant Commissioner of Police was only in respect of the acknowledgment by the person whose statement was recorded that it had been recorded in accordance with what was stated. The Assistant Commissioner of Police had not recorded his satisfaction about the faithfulness of the averments in the in-camera statement. In that background, therefore, the Division Bench came to the conclusion that it was essential that the detaining authority should have recorded its subjective satisfaction about the genuineness of the averments of the in camera statement. In the present case, in the verification of two in-camera statements of the witnesses the subjective satisfaction of the Assistant Commissioner of Police about the truthfulness of the averments of the in-camera' statement is reflected. In that background, therefore, according to us, failure of the detaining authority to record its subjective satisfaction about the truthfulness of the in camera statements would not vitiate the detention order. The detaining authority in its impugned order has recorded that the Assistant Commissioner of Police had verified the truthfulness of the in-camera statements. The learned A.P.P. has also invited out attention to the Division Bench Judgment of this Court in Smt. Zebunnisa Abdul Majid vs. M.N. Singh and others, 2001 Cri.L.J. 2759. The Division Bench in no uncertain term has held that the detaining authority need not state in grounds that it was subjectively satisfied about truthfulness of in-camera statements. Truthfulness of in-camera statements was verified by the Assistant Commissioner of Police. The Division Bench had also taken into consideration the judgment of the Division Bench in Smt. Vijaya Raju Gupta vs. R.H.Mendonca (Supra). Therefore, according to us, the detention order is not vitiated on this ground. Truthfulness of in-camera statements was verified by the Assistant Commissioner of Police. The Division Bench had also taken into consideration the judgment of the Division Bench in Smt. Vijaya Raju Gupta vs. R.H.Mendonca (Supra). Therefore, according to us, the detention order is not vitiated on this ground. (d) Learned Counsel for the petitioner has urged before us that there was delay in serving the order of the Government confirming the order of detention. Learned Counsel for the petitioner has placed reliance on Section 3(3) of the MPDA Act, to urge before us that the detention order could be said to be valid only for a period of twelve days, unless, in the meantime, it had been approved by the State Government. The learned Counsel for the petitioner has, therefore, urged before us that there was delay in communicating the approval of the Government. According to the learned Counsel for the petitioner, even the detaining authority and the jail authorities were not aware about approval granted by the Government and consequently the detention of the petitioner was illegal. Learned A. P. P. has urged before us that the approval order has been passed in accordance with law within the period specified by the statute and merely on account of delay in communicating the approval order either to the petitioner or to the jail authorities would not vitiate the order of detention. We have considered the submissions advanced before us and according to us, in the light of the fact that the Government had passed an order confirming the detention of the petitioner and that order had been passed within the period specified by the statute, the mere delay in communicating the order of the Government approving the detention order cannot be said to have vitiated the detention order. The order of detention, therefore, according to us, is not rendered illegal on account of the delay in communicating the order of the Government approving the detention of the petitioner. (e) Learned Counsel for the petitioner has further urged before us that there was delay in passing of the impugned order of detention from the last prejudicial activity and consequently there was live link and the detention of the petitioner, therefore, is vitiated. (e) Learned Counsel for the petitioner has further urged before us that there was delay in passing of the impugned order of detention from the last prejudicial activity and consequently there was live link and the detention of the petitioner, therefore, is vitiated. The learned A. P. P. by referring to the impugned order has urged before us that the period has to be counted from the date of the last in-camera statement and consequently there is no delay in issuing the detention order. It is urged before us that the last in-camera statement was recorded on 27-2-2011 and the impugned order has been passed on 15-3-2011 and consequently there is no delay. Learned A.P.P. has placed reliance on the judgment of the Division Bench of this Court in Deepak Govind Murudkar vs. Mr. R.H. Mendonca & Ors., 2001 All MR (Cri) 357, to urge before us that delay has to be computed from the date of last in-camera statement and not from the date of C.R. We have already pointed out that the last in-camera statement was recorded on 27-2-2011 and the impugned order was passed on 15-3-2011 and consequently, accordingly to us, there is no delay whatsoever. (f) During the course of argument, learned Counsel for the petitioner has urged before us that though this ground is not specifically urged in the petition, that the verification of the in-camera statement recorded by the Assistant Commissioner of Police is in Marathi and consequently since the petitioner does not understand Marathi, the detention of the petitioner is vitiated. The learned A.P.P. has urged before us that the Hindi Translation of the grounds of detention were provided to the petitioner and in the Hindi Translation the detaining authority has clearly expressed that the Assistant Commissioner of Police had verified the in-camera statement and has recorded his subjective satisfaction about truthfulness of the averments. In any event, the petitioner does not claim that he could not make any effective representation because he had not understood the verification done by the Assistant Commissioner of Police. Apart from this, since the Hindi translation of the grounds of detention had been provided, which record the subjective satisfaction of the Assistant Commissioner of Police regarding the truthfulness of the averments of the in-camera statement, according to us, the detention cannot be said to be vitiated. 5. Apart from this, since the Hindi translation of the grounds of detention had been provided, which record the subjective satisfaction of the Assistant Commissioner of Police regarding the truthfulness of the averments of the in-camera statement, according to us, the detention cannot be said to be vitiated. 5. We have carefully considered the argument advanced before us by the learned Counsel for the petitioner and the learned A.P.P. for the respondents and upon consideration of the submissions and the documents, according to us, the detention order is valid and there is no merit in the challenge to the detention order. The petition, therefore, fails and is dismissed. Rule stands discharged. In the circumstances, there shall be no order as to costs. Petition dismissed.