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2020 DIGILAW 457 (BOM)

Rakesh Mohan Gadekar v. State of Maharashtra

2020-02-27

MADHAV J.JAMDAR, SUNIL B.SHUKRE

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JUDGMENT : SUNIL B. SHUKRE, J. 1. Leave to amend Prayer Clause No. 2 by changing the date of the impugned order is granted. Amendment be carried out forthwith. 2. Rule, made returnable forthwith. Heard forthwith finally by consent of the learned counsel appearing for the parties. 3. This petition questions the reasonableness, correctness and legality of the order dated 24.06.2019 directing preventive detention of the petitioner under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugs Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (hereinafter referred to as “MPDA Act”). 4. The petitioner was proceeded against under Section 3 of MPDA Act, on the premise that he was a weapon-wielding dangerous recidivist out to spread terror and violence in the area of his activities. The Police Authorities had received several complaints from persons in the neighbourhood that the petitioner extorted money, unlawfully detained businessmen, sand exporters, traders and industrialists to ransom, threatened witnesses with dire consequences, if they disclosed any of his activities to police or gave any evidence against him and in general indulged in various criminal and violent activities. The area of operation of the petitioner was stated to be the whole area comprising such villages as Waregaon, Bina Sangam, Dahegaon Rangari, basin of Kanan river and other areas falling within the jurisdiction of Police Station Khaperkheda, District Nagpur. SDPO and concerned Police Authorities made inquiries into the complaints, verified the allegations made in the complaints for their correctness and submitted their reports to the learned District Magistrate Nagpur-respondent no. 2, for taking necessary action in the matter against the petitioner. Respondent no. 2 also embarked upon an enquiry on his own and considered the material placed before him including statements of two confidential witnesses and came to the conclusion that the petitioner was an impulsively violent man wanting to spread terror in the society and doing various activities prejudicial to the maintenance of public order and accordingly passed the order of detention under Section 3(2) of MPDA Act on 24.06.2019. This order was vetted by the Advisory Board constituted under Section 9 of MPDA Act and it formed an opinion that there were sufficient grounds to justify the order passed by respondent no. 2 on 24.06.2019. The State Government-respondent no. This order was vetted by the Advisory Board constituted under Section 9 of MPDA Act and it formed an opinion that there were sufficient grounds to justify the order passed by respondent no. 2 on 24.06.2019. The State Government-respondent no. 1 considered the opinion/report of the Advisory Board and in exercise of its power under Section 12 (1) of the MPDA Act, confirmed the detention order by its order passed on 07.08.2019, thereby directing that the petitioner be continued to be detained for a period of an year from the date of his detention. 5. The petitioner has challenged both orders dated 24.06.2019 and 07.08.2019 passed by respondent no. 2 and respondent No. 1 respectively. 6. Shri M.N. Ali, learned counsel for the petitioner, assails the impugned orders on different grounds. Firstly, his objection is as to the absence of any live link between the material considered as prejudicial to the maintenance of public order by respondent no. 2 and the subjective satisfaction reached by respondent no. 2 that the activities of the petitioner were indeed as such. Secondly, he assails the impugned orders on the ground of non-application of mind. Thirdly, according to him, statements of secret witnesses were not actually perused by respondent no. 2. Fourthly, he submits that the statements of confidential witnesses were artificial creations made to make a show that there existed substantial material to justify the decision regarding preventively detaining of the petitioner. 7. Countering the argument, Ms. K.S. Joshi, learned Additional Public Prosecutor appearing for the respondents, submits that this is not a case, wherein one can see from the material available on record that there is absence of any live link in between the alleged terrorising activities and the purpose of the detention orders passed against the petitioner. She also submits that respondent no. 2 in paragraph no. 9 of the first impugned order dated 24.06.2019 has clearly stated that he had perused the report of Sub-Divisional Police Officer, Kamptee Division, District Nagpur, and in paragraph no. 6 of the order, he has also narrated the gist of the statements of confidential witnesses, which would all show that there was enough application of mind on his part and that he had actually verified and gone through the statements of confidential witnesses. 6 of the order, he has also narrated the gist of the statements of confidential witnesses, which would all show that there was enough application of mind on his part and that he had actually verified and gone through the statements of confidential witnesses. She further points out that it may be true that the statements of confidential witnesses were recorded about three months before passing of the detention order dated 24.06.2019, but, from the incidents narrated by them, a gist of which has appeared in the impugned order dated 24.06.2019, one can say that these statements had not been created by any Police Officers just to fill up the gaps. She also submits that the truthfulness of these statements was verified by the concerned Police Station Officer and also the SDPO, which is all reflected in the impugned order. As such, she submits that there is no merit in this petition. 8. Any appreciation of rival arguments in this case would have to start with a consideration of the impugned order dated 24.06.2019 first and then the focus would have to be shifted to the material placed on record by both sides in order to support their respective arguments. So, we would begin with the impugned order dated 24.06.2019. 9. It is seen from the impugned order that it is pivoted upon two crimes; Crime No. 703 of 2018 of Police Station Khaparkheda, registered for offences punishable under Sections 294 and 506 read with Section 34 of the Indian Penal Code and also Section 25 read with Section 4 of the Arms Act and Crime N o.349 of 2018, Police Station Ranapratap Nagar, Nagpur City, registered for offences punishable under sections 3, 25 of the Arms Act read with Section 135 of the Maharashtra Police Act read with Section 84 of the Maharashtra Prohibition Act and Sections 100 (2)/Section 177 of the Motor Vehicles Act, and statements of two confidential witnesses; Witness A and Witness B. 10. Now, we would deal with the consideration bestowed upon two crimes registered against the petitioner by respondent no. 2 while passing the impugned order. Crime No. 703 of 2018 was registered on 27.12.2018 and Crime No. 349 of 2018 was registered on 06.01.2018. These two crimes have been considered along with other material as constituting dangerous activities on the part of the petitioner leading to their prejudicially affecting maintenance of public order. 2 while passing the impugned order. Crime No. 703 of 2018 was registered on 27.12.2018 and Crime No. 349 of 2018 was registered on 06.01.2018. These two crimes have been considered along with other material as constituting dangerous activities on the part of the petitioner leading to their prejudicially affecting maintenance of public order. This is also the requirement of Section 3(1), which lays down that the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do, make an order directing that such person be detained. Sub- section (2) of Section 3 speaks of power of the State Government to delegate its authority to pass detention order to the District Magistrate or Commissioner of Police, as the case may be. Sub-section (3) of Section 3 provides for sending of report to the State Government by the delegate within the meaning of sub-section (2). We are not concerned here with the procedural aspects dealt with under Sub-sections (2) and (3) of Section 3. We have primarily to look for the purpose for which and the ground on which the order of preventive detention must be passed under Section 3(1) of MPDA Act. 11. We have already stated here the purpose and object of such an order. So, it has to be seen as to whether or not consideration of the offences registered about 6 months prior to passing of the detention order could have had any bearing upon the subjective satisfaction that was required to be reached in the present case by respondent no. 2. The subjective satisfaction, of course, would be to the effect that dangerous activities carried on by a person like petitioner, are prejudicial to the maintenance of public order and such satisfaction could be reached only when the period of such activities could be seen to be lying in a time zone reasonably proximate to the date of the impugned order. If, there is any delay in considering criminal offences forming one of the grounds of detention order and there is no explanation given for the delay, the unexplained delay would vitiate the detention order. If, there is any delay in considering criminal offences forming one of the grounds of detention order and there is no explanation given for the delay, the unexplained delay would vitiate the detention order. In the present case, there is no explanation given either in the impugned order or in the reply filed on behalf of the respondents regarding delay which has occurred in the present case in passing the detention order after the registration of the offences considered as relevant for passing the detention order. 12. In the case of Pradeep Nilkanth Paturkar vs. S. Ramamurthy and Others, 1994 Cri. L.J. 620, Hon’ble Supreme Court held that any unexplained delay, whether short or long especially when the petitioner has taken a specific plea of delay, vitiates the detention order. Similar is the view expressed in the judgments rendered by Division Benches of this Court in the cases of Manohar Kisan Maraskolhe vs. State of Maharashtra, 2001 All MR (Cri.) 1618 and Rashid Shaukat Hussain Sayyed @ Jagga vs. State of Maharashtra and Others, 2018 All MR (Cri.) 3543. 13. As stated earlier, criminal offences registered vide Crime Nos. 703 of 2018 and 349 of 2018, formed one of the two grounds for passing of the detention order against the petitioner. At the cost of repetition, we would say that these offences were registered about 6 months prior to passing of the detention order. Therefore, it was necessary for the respondents to have given a reasonable explanation for the delay occurred on their part in appropriately considering the fact of registration of these two crimes against the petitioner which were stale. The rationale behind the principle that delay vitiates detention order is that due to efflux of time, prejudicial impact of the offences registered against an offender generally gets reduced and more often than not it fades away. Usually, after registration of the offence, an accused is placed under arrest and in many cases, he is also released on bail. But, if there is any material existing on record which shows that after his release on bail, the deleterious effect of the crime registered increased or at least led to causing of prejudice to the maintenance of public order, the authority would be justified rather would be under a duty to consider that effect. But, if there is any material existing on record which shows that after his release on bail, the deleterious effect of the crime registered increased or at least led to causing of prejudice to the maintenance of public order, the authority would be justified rather would be under a duty to consider that effect. But, absent such material the prejudicial consequence would be seen to have evaporated over a period of time. 14. Preventive detention of a person is the detention made to incapacitate the person to commit crime; to cripple the person in his ability to do any act adversely affecting public order. It is not a detention made post commission of crime. When a person is arrested and detained after commission of any crime, remedy in the nature of release on bail in accordance with law is available. Such a course, however, is not available to a detenu of preventive action. Such character of preventive detention action places it in a class apart from ordinary police action of arrest made for commission of a crime. This character of the action of preventive detention makes it imperative for the authority to be careful in vetting the material available and reach his satisfaction regarding the need for preventively detaining a person. It is for this reason that coming forth of the reasonable explanation for the delay which occurs in passing of detention order based upon some old crimes, from the authority is expected and when it does not come by, it would be presumed that by passage of time the prejudicial force of the offences from the view point of the maintenance of public order has been spent away. That is how the impugned order of detention is capable of getting vitiated because of the unexplained delay. This is what has happened in the present case, there being no explanation whatsoever given for the delay. This would lead to the conclusion that here there was snapping of live link between the old crimes registered against the petitioner and the purpose of the impugned orders. 15. Now, we would consider the other material, on which subjective satisfaction of respondent no. 2 is based. This material comprises the statements of two confidential witnesses, witness A and witness B. The gist of statements of these two witnesses is given in the impugned order dated 24.06.2019. 15. Now, we would consider the other material, on which subjective satisfaction of respondent no. 2 is based. This material comprises the statements of two confidential witnesses, witness A and witness B. The gist of statements of these two witnesses is given in the impugned order dated 24.06.2019. It does not refer to any dates when the alleged criminal incidents took place, though mentioning of dates of criminal incidents or offences in the statements of confidential witnesses is not required in law. However, some indication has to be given by confidential or secret witnesses regarding happening of a particular criminal incident so that its truthfulness could be reasonably ascertained by the concerned Police Officer. If the witness does not give any indication even generally about the month or some season of the year or some festival celebrated around the period of incident and the area of the incident, it would be very difficult for the police to ascertain the correctness of the statement. If such hints or clues are not given and some area is not generally referred to by such a witness and again we would say, it would only make the task of police officer to verify the statement for its correctness extremely difficult and in that case, judicial review of the order of preventive detention would be reduced to a theatrical act. On going through the statements of both these witnesses, copies of which are forming part of the paper book, we find that both the witnesses are only generally stating about some activities of the petitioner which they thought, in their opinion, to be generally amounting to creation and spread of terror in the area. Such generalised statements, not capable of being verified for their correctness would furnish no material and no ammunition to the authority to form an opinion about the need for preventive detention of the person branded as outlaw. 16. Witness A, of course, has referred in particular to a criminal incident of 03.06.2018. About this incident, he has stated that on that day, when he was relaxing in a swimming pool at Sunrise Ashiyana Hotel at Dahegaon, this petitioner along with his associates barged inside the hotel and assaulted him by deadly weapons. 16. Witness A, of course, has referred in particular to a criminal incident of 03.06.2018. About this incident, he has stated that on that day, when he was relaxing in a swimming pool at Sunrise Ashiyana Hotel at Dahegaon, this petitioner along with his associates barged inside the hotel and assaulted him by deadly weapons. He has also stated that he was attempted to be taken away forcibly by the petitioner and his associates with an intention to kill him, but as it turned out his shouts helped prevent his being kidnapped and he was rescued by the staff members of the hotel from the clutches of the petitioner and his associates. A copy of the FIR filed in this regard by witness A has been filed on record. On going through it, we find that some different version has been stated therein. There is no mention in the FIR about the petitioner and his associates assaulting witness A by means of deadly weapons. There is also no mention in the FIR about the petitioner and his associates forcing their entry inside the hotel. Rather, the version given in the FIR is that this witness was called out of the swimming pool and then he was beaten up by means of a belt. It is for this reason no offence punishable under Section 324 of the Indian Penal Code was registered against the petitioner and it would falsify the version of witness A to the extent of making of assault by dangerous weapons. 17. The offences that were registered in respect of the incident dated 03.06.2018 were those which were punishable under sections 323, 364, 506 read with Section 34 of the Indian Penal Code vide Crime No. 207 of 2018, at Police Station Khaperkheda. Besides, this crime has not been considered, in any manner, as relevant by the respondent no. 2, while passing the impugned order. If registration of this crime was not considered as relevant, we do not understand as to how through the statement of a confidential witness it assumed relevance. In fact, with such revelation of a crime, the witness A no longer remained a confidential or secret witness. If this incident was to be considered as relevant, it would have been possible only if some more material was seen as existing on record by respondent no. In fact, with such revelation of a crime, the witness A no longer remained a confidential or secret witness. If this incident was to be considered as relevant, it would have been possible only if some more material was seen as existing on record by respondent no. 2 which would have shown that what was considered by the witness A to be a terrorizing act on 03.06.2018, continued to be so owing to few more alarming acts committed thereafter by the petitioner. But, that is not the case here. There is no reference made to any other additional dangerous acts anywhere in the statement of witness A. So, this particular incident would not help the authority to rest the detention order on. But, the authorities did consider it and unjustifiably so, showing non-application of their mind. 18. As regards the statement of witness B, we have already stated that it contains only generalized allegations which are largely in the nature of the opinion of this witness. He has mentioned in general terms some incidents of Waregaon and Bina Sangam areas. But, no indication has been given so as to satisfy oneself through the process of verification that those incidents had some element of truth in them. Therefore, the material furnished by the statements of witness B, was inadequate and it did not help in any manner the respondent no. 2 in reaching a subjective satisfaction regarding the necessity of passing of detention order. Yet, statement of witness B has been considered as relevant, again showing failure of the authorities to apply their mind to the reality revealed by the statement. 19. In addition to what has been stated earlier, we also find that there was no live link between the activities as stated above, by witness A and witness B in their respective statements and the purpose of passing of the detention order on 24.06.2019. The statement of witness A was recorded on 16.03.2019 and statement of witness B on 19.03.2019. Whatever they have stated about criminal activities of the petitioner therefore, could not have been of a period beyond the dates of 19.03.2019 and 16.03.2019, as the case may be. The impugned order has been passed on 24.06.2019. So, what was that which made the Authority to pass the order of detention after a period of three months? Whatever they have stated about criminal activities of the petitioner therefore, could not have been of a period beyond the dates of 19.03.2019 and 16.03.2019, as the case may be. The impugned order has been passed on 24.06.2019. So, what was that which made the Authority to pass the order of detention after a period of three months? Any answer in this regard has to be provided by respondent no. 2. Detention order however, is silent on this aspect of the matter. There is also no explanation given in the reply of the respondents regarding what was done by the petitioner between March 2019 and 24.06.2019 which impelled the respondent no. 2 to form an opinion regarding the need for passing of the detention order. No material whatsoever has been stated to be present to fill this void of about three months. There is thus, no live link between criminal activities referred to by the confidential witnesses and the purpose of the detention order. 20. In the case of Pradeep Nilkanth Paturkar vs. S. Ramamurthi and Others (supra), Hon’ble Apex Court has found that in order to pass a drastic order as one of the detention of a person under the provisions of MPDA Act, it is necessary that there exists a live link between the prejudicial activities and the purpose of detention. If there is no material showing existence of such live link, it would have to be said that the link between the prejudicial activities and the purpose of the detention order is cut-off. Observations made by the Hon’ble Apex Court in paragraph no. 9 in the said case of Pradeep Nilkanth Paturkar (supra) being relevant are reproduced as under: 9. According to Mr. Gupte, the explanation given by the High Court for the delay that the "procedure required sometime before the powers are exercised" is not the explanation offered by the detaining authority and therefore that explanation should not be accepted to the prejudice of the right of the detenu. In support of his submission that the unexplained and undue delay in passing the order vitiates the impugned detention order, he drew our attention to a decision of this Court in T.A. Abdul Rahman vs. State of Kerala, (1989) 4 SCC 741 : AIR 1990 SC 225 to which one of us (S. Ratnavel Pandian, J.) was a party. In support of his submission that the unexplained and undue delay in passing the order vitiates the impugned detention order, he drew our attention to a decision of this Court in T.A. Abdul Rahman vs. State of Kerala, (1989) 4 SCC 741 : AIR 1990 SC 225 to which one of us (S. Ratnavel Pandian, J.) was a party. In that case after recapitulating the various decisions on this point the following dictum has been laid down (at p. 229 of AIR): “The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.” 21. The authorities, who are conferred with the power to preventively detain a person, must be conscious of the fact that individual liberty of a person is sacrosanct and it has been clothed with the character of a fundamental right which can be taken away only by a reasonable provision made by law in that regard. By passing a detention order, the authority encroaches upon an individual’s liberty although, there is no crime registered against him. Therefore, it is absolutely necessary for the authority passing the detention order to tread on otherwise forbidden territory while keeping his eyes open and his mind alive to the reality laid bare by the material available on record. It is only through such consciousness and alertness that the authority must reach his subjective satisfaction regarding the necessity of passing of the order. It is only through such consciousness and alertness that the authority must reach his subjective satisfaction regarding the necessity of passing of the order. Such subjective satisfaction must be based upon some material which exists on record although, all its minute details need not be stated in the impugned order. But, existence of such material is of cardinal importance and any satisfaction subjectively reached sans any such material would be vulnerable to criticism in its judicial review. The reason being that when subjective satisfaction is arrived at on the basis of a criterion objectively offered by the material available on record, the process of judicial review becomes easy and High Court can satisfy itself about the correctness of the process which culminated into detention order. Otherwise, the detention order can hardly be upheld by the High Court. A Division Bench of this Court in the case of Rashid Shaukat Husain vs. State of Maharashtra (supra), has observed that the matter of preventive detention is an exception and not a rule. It further observed that certain safe guards are provided for taking away the life and liberty guaranteed to every individual under Article 21 of the Constitution of India. It further observed that the Article 22, which permits preventive detention, comes with adequate safe guards and it cautions against tinkering with individual liberty easily and casually. It is for this reason that it is not the preventive detention order as such but the process by which it is made which is always the focus of judicial review of such an order. 22. Learned counsel for the petitioner has also raised two additional points of assailment: (i) Non perusal of statements of confidential witnesses. (ii) Concoction of statements of confidential witnesses. We, however, do not agree with learned counsel for the petitioner in this regard. Impugned order passed by respondent No. 2 mentions that he had gone through the statements and we have no reason to doubt his such remark. About the fabrication aspect, there is no material provided by the petitioner for us to be convinced about it. The argument made in this regard is, therefore, rejected. 23. Thus, we find that the impugned order passed by respondent no. 2 is vitiated by absence of live link and non- application of mind explained in details earlier and some errors are repeated in the impugned order passed by respondent no. 1. The argument made in this regard is, therefore, rejected. 23. Thus, we find that the impugned order passed by respondent no. 2 is vitiated by absence of live link and non- application of mind explained in details earlier and some errors are repeated in the impugned order passed by respondent no. 1. So, we do not find any substance in the argument of opposition of learned Additional Public Prosecutor. 24. In the result, the petition deserves what it seeks. 25. The petition is allowed. The impugned orders are quashed and set aside. The petitioner is directed to be released forthwith, if not required in any other crime. Rule is thus made absolute.