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2013 DIGILAW 977 (BOM)

Mehmood Shahjad Khan @ Pathan v. State of Maharashtra

2013-05-08

A.R.JOSHI, A.S.OKA

body2013
JUDGMENT A.S. OKA, J. By this Writ Petition under Article 226 of the Constitution of India, the petitioner who is the mother of one Mehmood Shahjad Khan @ Pathan has taken exception to the order of detention dated 1st October, 2012 passed by the Commissioner of Police in purported exercise of powers under Sub-Section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons and Video Pirates Act, 1981 (hereinafter referred to as "the said Act of 1981") against the said Mehmood. 2. Various grounds of challenge are agitated by the petitioner. The first ground is failure to place vital documents before the Detaining Authority. The second ground is of non-application of mind in as much as though the power to pass an order of detention has been conferred under Sub-Section (1) of Section 3 of the said Act of 1981, the Detaining Authority has purportedly exercised power under Sub-Section (2) of Section 3 of the said Act of 1981 which is only the power of delegation of the State Government. Learned Counsel appearing for the petitioner pointed out that in the grounds of detention, the Detaining Authority has relied upon the in-camera statements of two witnesses dated 18th August, 2012 and 23rd August, 2012 recorded by the Senior Inspector of Police, Mumbra Police Station. He pointed out that it is alleged in the grounds of detention that the in-camera statements were verified by the Assistant Commissioner of Police, Kalwa Division. The ground of challenge is that in the compilation of documents supplied to the detenu, though copies of the in-camera statements have been included, the verification part thereof does not contain the name and the designation of the officer who has allegedly verified the in-camera statements. He submitted that a failure to supply a proper copies of the in-camera statements duly verified to the detenue itself vitiates the order of detention. He also pointed out that the verification has been purportedly recorded on 28th August, 2012 whereas the proposal for detention was submitted by the Sponsoring Authority on 27th August, 2012. 3. Learned APP relied upon the affidavits-in-reply filed by the Sponsoring Authority and Detaining Authority supporting the impugned order. Learned APP also pointed out the prejudicial activities alleged against the said Mehmood and submitted that no interference is called for. 4. We have carefully considered the submissions. 3. Learned APP relied upon the affidavits-in-reply filed by the Sponsoring Authority and Detaining Authority supporting the impugned order. Learned APP also pointed out the prejudicial activities alleged against the said Mehmood and submitted that no interference is called for. 4. We have carefully considered the submissions. We have perused the grounds of detention supplied to the petitioner's son. Perusal of the grounds of detention supplied to him shows that a specific reliance has been placed by Detaining Authority on the in-camera statements of witnesses A and B. In clause (6) of the grounds it is stated that the in-camera statements were recorded by the Senior Inspector of Police of Mumbra police station and the same were duly verified by the Assistant Commissioner of Police, Kalwa Division. Perusal of the affidavit of the Detaining Authority, and in particular paragraph 9 shows that the Detaining Authority has relied upon the in-camera statements of the two witnesses which were allegedly verified. In response to the ground (h) in the Writ Petition, which deals with the infirmities in the copies of the in-camera statements supplied to the petitioner's son, the Detaining Authority has stated thus : “9. With reference to para 3(h) of the petition, it is true to suggest that back side of in camera statements does not show name and the designation of the officer who had verified the said statements. I say that mere not disclosing the name and designation of verifying officer on in-camera statements does not vitiate the entire detection order.” 5. The consistent view taken by this Court is that failure to supply copies of the verification of the in-camera statements or verified statements to the person detained results into a breach of Article 22(5) of the Constitution of India. Some of the decisions in which the consistent view is taken are : (i) Smt. Subhangi Tukaram Sawant Vs. Shri R.H. Mendonca & Ors. [2001 ALL MR (Cri) 68] (ii) Shri Vijay Ramchandra Angre Vs. Shri S.M. Shangari and Others [2004 ALL MR (Cri) 1974] (iii) Swapnil Sanjay Tahsildar Vs. The District Magistrate and others, [2013 ALL MR(Cri) 16] 6. We have perused the copies of the in-camera statements forming part of the compilation of documents served upon the petitioner's son. [2001 ALL MR (Cri) 68] (ii) Shri Vijay Ramchandra Angre Vs. Shri S.M. Shangari and Others [2004 ALL MR (Cri) 1974] (iii) Swapnil Sanjay Tahsildar Vs. The District Magistrate and others, [2013 ALL MR(Cri) 16] 6. We have perused the copies of the in-camera statements forming part of the compilation of documents served upon the petitioner's son. In the verification part of the in-camera statements, the names of the witnesses are kept blank and even the name and the designation of the officer who allegedly verified the in-camera statements are not mentioned. The allegation of the Detaining Authority is that the said statements were duly verified by the Assistant Commissioner of Police. Thus, either the contention that the in-camera statements were verified by the Assistant Commissioner Police is false or the copies of the verification supplied to the detenu are incorrect. Going by what the Detaining Authority has stated, suffice it to say that true copies of the verification or verified statements have not been supplied to the petitioner's son. Supply of a copy of a verified in-camera statement containing blank verification clause does not satisfy the requirement of law. Hence, in absence of proper copies of verification, the petitioner's son was prevented from making an effective representation against the order of detention as contemplated under Article 22(5) of the Constitution of India. 7. Only on this ground, the impugned order of detention is vitiated and the same deserves to be quashed and set aside. 8. Accordingly, we pass the following order : ORDER (I) Rule is made absolute in terms of prayer clause (a) which reads thus : “(a) that this Hon'ble Court be pleased to issue a Writ of Certiorari or Writ in nature of Certiorari or any other appropriate Writ or Order or Direction calling for the entire papers and proceedings, of the present case, whereunder, the Order of Detention bearing No. TC/PD/MPDA/07/2012 dated 1-10-2012, being Exhibit "A" hereto, has been passed by the Respondent No. 2 (i.e. as "Detaining Authority"), and after perusing the legality, validity and propriety, of the said Order of Detention, quash and set aside the same.” Ordered accordingly.