1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 20 OF 2008 CRIMINAL WRIT PETITION NO. 20 OF 2008 CRIMINAL WRIT PETITION NO. 20 OF 2008 Mr. Janardhan S/o. Chintaman Bhoir ) adult, Indian Inhabitant, aged about ) 36 years, presently lodged at Yerwada ) Jail, PUne and permanent resident of ) Valgav Village, Taluka Bhiwandi, ) Dist. Thane. )..Petitioner V/s. The State of Maharashtra, through ) a) Commissioner of Police, ) Dist. Thane. ) b) The Inspector Incharge, Narpoli ) Police Station, Bhiwandi, ) Dist. Thane. ) both to be served through Public ) Prosecutor, High Court, Mumbai. )..Respondents Mr.U.N.Tripathi with Mr. A.M.Saraogi, Advocates, for the petitioner. 2 Mr. D.S.Mhaispurkar, APP, for the State. CORAM: B.H.MARLAPALLE & CORAM: B.H.MARLAPALLE & CORAM: B.H.MARLAPALLE & J.H.BHATIA, JJ. J.H.BHATIA, JJ. J.H.BHATIA, JJ. DATE : 10th June, 2008 DATE : 10th June, 2008 DATE : 10th June, 2008. JUDGMENT JUDGMENT JUDGMENT :(Per J.H.Bhatia, J.) :(Per J.H.Bhatia, J.) :(Per J.H.Bhatia, J.) 1. The Writ Petition filed under Article 226 read with Articles 21 and 22 of the Constitution challenges the detention order dated 29.5.2007 passed by the Commissioner of Police, Thane, under Section 3(2) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons Act, 1981, ("the MPDA Act" for short) holding the detenu/petitioner Janardhan Chintaman Bhoir as dangerous person under Section 2(b-1) of the MPDA Act. 2. The detention order was actually served on the petitioner and he was taken into custody on 18.10.2007. The petitioner made a representation and by letter dated 6.12.2007, he was informed that the Advisory Board had confirmed the detention order of the petitioner and the representation had been turned down. According to the 3 petitioner, the grounds of detention were served on him along with the detention order dated 29.5.2007 and they revealed that several cases were registered against the petitioner and he was also detained previously under the MPDA Act in the year 2005. After his release, Crime No.I-66 of 2007 was registered under Sections 326, 323, 143, 147,148, 149 and 427 of I.P.C.on 12.3.2007. That alleged incident had taken place on 12.3.2007 at about 00.30 hours in the night. The electricity supply was disrupted and a mob of 20 to 25 persons attacked one Nikhil Deepak Joshi, who was working as Site Engineer with Toranto Power Limited, the company which had a contract with Maharashtra State Electricity Distribution Company Limited for electricity supply to Bhiwandi. In that incident, Nikhil Deepak Joshi and his two colleagues, Jagan Laxman Mhalunge and Deepak Vilas Suryawanshi were severely beaten with iron bar, sticks, etc. and Nikhil had suffered several injuries,including fracture. Initially, offence was registered against 20-25 unknown persons, but later on, the present petitioner and his seven companions were identified as the persons who had attacked Nikhil and his companions. In that case, all those persons, including the petitioner, were arrested. The petitioner was however, granted bail on 11.4.2007 and he was released. 4 3. The grounds of detention also revealed that the Senior Police Inspector of Narpoli Police Station had received several complaints from unknown persons that the petitioner and his associates used to extract money from the godown-keepers, truck drivers, hand-carters, hoteliers at the point of knife and threat to life. Therefore, the matter was referred to the Police Inspector (Crime) of Narpoli Police Station to conduct confidential enquiry. In that enquiry, the Police Inspector (Crime) recorded statements of three persons in-camera confirming the allegations of extortion under threat to life by the present petitioner. On the basis of the report submitted by the Police Inspector (Crime) and verification of in- camera statements by the Assistant Commissioner of Police, Bhiwandi (E) Division, the Police Commissioner was satisfied that the statements were true. 4. According to the petitioner, there was no substance at all to pass the detention order against him. There was no material to show that he was involved in the attack on Nikhil Joshi and his companions. The ACP Bhiwandi had not made any attempt to verify whether the contents of in-camera statements of three witnesses were, in fact, true. It is contended that in view of the legal position settled by the Supreme Court as well 5 as by this Court in several cases, the verification of mere recording of statement was not sufficient to come to the conclusion that the contents thereof were also true. It is contended that in view of this, the detention order materially suffers from severe drawbacks and is liable to be set aside. 5. Heard Mr. Tripathi, the learned Counsel for the petitioner and Mr. Mhaispurkar, the learned APP. Mr. Tripathi relied upon several authorities including Smt. Smt. Smt. Phulwari Jagdambaprasad Pathak vs. Shri R.H.Mendonca Phulwari Jagdambaprasad Pathak vs. Shri R.H.Mendonca Phulwari Jagdambaprasad Pathak vs. Shri R.H.Mendonca &Ors. 2000 ALL MR (Cri)1503, Mrs. Zabin Salim Hamja &Ors. 2000 ALL MR (Cri)1503, Mrs. Zabin Salim Hamja &Ors. 2000 ALL MR (Cri)1503, Mrs. Zabin Salim Hamja Shaikh vs. Shri A.N.Roy & Ors. 2006 ALL MR (Cri) 3324 Shaikh vs. Shri A.N.Roy & Ors. 2006 ALL MR (Cri) 3324 Shaikh vs. Shri A.N.Roy & Ors. 2006 ALL MR (Cri) 3324 and Smt. Vijaya Raju Gupta vs. Shri R.H.Mendonca & and Smt. Vijaya Raju Gupta vs. Shri R.H.Mendonca & and Smt. Vijaya Raju Gupta vs. Shri R.H.Mendonca & Others 2001 MR (Cri) 48. Others 2001 MR (Cri) 48. Others 2001 MR (Cri) 48. He vehemently contended that the verification of the in-camera statements was not proper and the record does not reveal that the ACP, who verified in-camera statements, had come to conclusion that the contents of the said statements were true and the alleged incidents had really taken place. He contended that the verification report only indicates that the concerned witnesses had stated before the verifying authority that their statements were correctly recorded as per their version. Mr. Tripathi vehemently contended that the identification parade was not conducted properly and the present petitioner and others 6 were shown to Nikhil Joshi at the Police Station and he had allegedly identified all of them as the members of mob who, had attacked him. He contended that the alleged incident had taken place at about midnight in dark because the electric supply was disrupted. In such circumstances, the identification of the petitioner at the Police Station as one of the culprits is totally unreliable and has no value. He contended that in view of these circumstances, both the grounds of detention of the petitioner will not stand the judicial scrutiny and, therefore, the detention order is liable to be set aside. 6. Mr. Mhaispurkar, the learned APP, however, placed reliance on the affidavit of the ACP, Mr. Manish Vitthal Ajinkya, who had verified the in-camera statements, wherein he had stated that he was also satisfied about the truthfulness of the incident. He also contended that there were several cases registered against the petitioner even prior to 2006. He was detained under the MPDA Act and it appears that after release from the detention also there was no change in his behaviour. According to him, taking into consideration all the circumstances, the detention order was necessary. 7 7. At the outset, it may be stated that even though in the petition it was contended that due to lapse of more than 4-1/2 months in serving the detention order, it may be inferred that there was no genuine and bonafide reason for taking action for detention of the petitioner, in view of the explanation given by the Police Commissioner about delay in executing the order, this ground was not pressed seriously. 8. We have carefully perused the record, the impugned order and the affidavits. The report lodged by Nikhil Joshi clearly shows that the incident had occurred on 12.3.2007 at 00.30 hrs. i.e. at about midnight. That incident occurred because the electric supply was disrupted and a mob of 20-25 persons had attacked and injured Nikhil Joshi and others. From this, it appears that it was dark and it was not possible to identify the culprits. The report was lodged against unknown 20-25 persons. The record reveals that on 28.3.2007, Nikhil Joshi and other two injured persons were called to the Police station. Eight accused persons, including the present petitioner were shown to them and they identified all the eight accused persons as the culprits. From this, it is clear that the procedure laid down for the purpose of holding identification parade was not followed. In such 8 circumstances, the identification of the petitioner at the Police station does not have any legal value. 9. The record reveals that in-camera statements of three witnesses A, B and C were recorded by the Police Inspector and each of the witnesses allegedly stated before the police officer that the present petitioner and his companions used to threat, assault and extort money from them. The in-camera statements were recorded on 26th, 27th and 28th March, 2007 and the endorsement about verification of the statements appears to be of 11.4.2007 made by the Assistant Police Commissioner, Mr. Manish Ajinkya. The endorsement reveals that in-camera statements recorded by the Police Inspector (Crime) were read over to the concerned witnesses and they also admitted that the statements were correctly recorded as per their verson. The endorsement reveals that on further enquiry, the ACP was satisfied on the basis of the statements made by the said witnesses thatthe apprehension or fear in their mind from the petitioner was genuine. From this, it can be said that in-camera statements were correctly recorded as per the version of those three witnesses and the fear in the mind of those persons was found to be genuine by the ACP and that assessment or belief of the ACP is based on his enquiry from those witnesses. 9 10. In Smt. Phulwari Jagdambaprasad Pathak Vs. Smt. Phulwari Jagdambaprasad Pathak Vs. Smt. Phulwari Jagdambaprasad Pathak Vs. Shri R.H.Mendonca (cited supra), Shri R.H.Mendonca (cited supra), Shri R.H.Mendonca (cited supra), Their Lordships of the Supreme Court observed as follows in para 16 :- "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 sufficient if from the material available on record the detaining authority could reasonably feel satisfied about 10 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 statue 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 type 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 should have a reasonable nexus with the purpose for which the order is passed." (emphasis supplied). From the last sentence in the above observations, it becomes clear that Their Lordships held that the facts stated in the material or the statements relied upon should be true and there should be a reasonable nexus with the purpose for which the order is passed. 11 Therefore,it was necessary for the detaining authority to record his satisfaction that the contents of the in-camera statements were also true. Mere correct recording of the statements of such witnesses is not sufficient. 11. In Smt. Vijaya Raju Gupta Vs. Shri Smt. Vijaya Raju Gupta Vs. Shri Smt. Vijaya Raju Gupta Vs. Shri R.H.Mendonca & Ors. 2001 AlL MR (Cri) 48, R.H.Mendonca & Ors. 2001 AlL MR (Cri) 48, R.H.Mendonca & Ors. 2001 AlL MR (Cri) 48, this Court had referred to the authority of the Supreme Court in the case of Smt. Phulwari Pathak Smt. Phulwari Pathak Smt. Phulwari Pathak and had observed as follows in para 6 :- "6. There remains no doubt in the light of the law laid down by the Apex Court that in camera statement of a 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 satisfied about the truthfulness of the statements made in the in camera statements. Testing it from this touchstone, we find that neither in the detention order nor in the 12 grounds of detention, the detaining authority has stated anything that he was satisfied about the truthfulness of the statements made in the in camera statements ..." 12. After referring the above authorities, in Mrs. Mrs. Mrs. Zabin Salim Hamja Shaikh Zabin Salim Hamja Shaikh Zabin Salim Hamja Shaikh, one of us (B.H.Marlapalle, J.) speaking for the Division Bench, had observed as follows in para 9 :- "9. Mrs. Pai, the learned APP invited our attention to the reasons furnished in passing the detention order and more particularly the following statement of the Detaining Authority in para 5(b) i.e. "After going through the proposal submitted by the Sr. Inspector of Police, Shahu Nagar Police station and the verification of In-camera statements done by the Divisional Assistant Commissioner of Police, I have reason to believe that the incidents narrated by the witnesses in their in camera statements to be true." We are not inclined to accept this statement as it is apparent that the Divisional Assistant Commissioner failed to verify regarding the truthfulness of the incidents as stated in both the in-camera 13 statements. The learned APP, therefore, invited our attention to the affidavits filed by the Detaining Authority as well as the Asst. Commissioner of Police who had verified the said statements. The Asst. Commissioner in his affidavit has stated, "After independently enquiring with them I was satisfied about their identity and truthfulness of the incidents narrated by them as well the fear expressed by them of the detenu." In our opinion, this exercise by the Assistant Commissioner of Police is to fill in the gaps and such a statement cannot be accepted now in support of the contentions that the verifying officer had verified about the truthfulness of the incidents. From the file we have noted that the proposal was submitted by the Deputy Commissioner of Police who again in the mechanical manner stated that the incidents were found to be truthful and in any case he was not the officer who did the verification of the witnesses whose statements were recorded in-camera. The material which was placed before the Detaining Authority along with the proposal submitted by the DCP included the in-camera statements as well and the said statements 14 lacked the legal requirements if they were held to be supporting the order of detention on the ground that the detenu is a dangerous person as defined under the MPDA Act. The learned APP relied upon the judgment of this Court in the case of Zebunnisa Abdul Majid Vs. M.N.Singh & Ors. [2001(3) Mh.L.J.365] and we must note that even in that case it is clear that the ACP had recorded the verification about the truthfulness of the incident." The bove authorities were relied upon by this Court in number of subsequent cases. 13. On perusal of the above observations, it would appear that the facts in Zabin Salim Hamja Shaikh Zabin Salim Hamja Shaikh Zabin Salim Hamja Shaikh were almost identical with the facts of the present case. In view of the legal position settled by the Supreme Court and by this Court in number of Judgments, it is clear that mere correct recording of in-camera statements of witness is not sufficient. It is necessary that the verifying authority should also find out whether the contents of those statements were really true and then only the verifying authority could certify that the fear in the mind of the witness was genuine. It is material to note that in this case the ACP Mr. Manish Ajinkya 15 filed his affidavit on 15.4.2008 and in para 2 of the affidavit while explaining the verification endorsement, he stated thus :- "I state that from the tenure of the verification recorded by me, it is apparent that I was also satisfied about truthfulness of the incident." If the endorsement made by him below the in-camera statements is perused, there is nothing to show that he had, in fact, made any enquiry to find out about truthfulness of the incidents stated in those in-camera statements. In view of the facts, circumstances and the legal position stated above, it is clear that the ACP had failed to make any enquiry about the truthfulness of the incidents narrated in the in-camera statements. The detention order was based on the in-camera statements and the incident pertaining to Nikhil Joshi, but in view of the facts noted above and the legal position, grounds of the detention order do not stand judicial scrutiny. 14. Therefore, this Petition succeeds and is hereby allowed. The impugned order of detention is hereby quashed and set aside and the petitioner be released from custody forthwith, if not required in any other 16 case. Rule is made absolute accordingly. (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (B.H.MARLAPALLE,J.) (J.H.BHATIA, J.) (J.H.BHATIA, J.) (J.H.BHATIA, J.)