[- 1 -] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION W.P.NO.2245 OF 2005 Shri.Nagnarayan Saryu Singh ] Age 60 yrs. ] Residing at Shital Nagar ] Marve Road, Malad (West) ] Mumbai ]..Petitioner Vs. 1. Shri.A.N.Roy ] Commissioner of Police ] Greater Mumbai ] ] 2. The State of Mah. ] Through Secretary, ] Home Deptt. (Appeal & ] Security), Mantralaya ] Mumbai ] ] 3. The Superintendent, ] Nasik Road Central ] Prison, Nasik ]..Respondents .... Mr.U.N.Tripathi Advocate for Petitioner Mrs.A.S.Pai A.P.P. for Respondents .... CORAM: D.G.DESHPANDE AND CORAM: D.G.DESHPANDE AND CORAM: D.G.DESHPANDE AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATE : MAY 05, 2006 DATE : MAY 05, 2006 DATE : MAY 05, 2006 ORAL JUDGMENT:(PER SMT.V.K.TAHILRAMANI,J): ORAL JUDGMENT:(PER SMT.V.K.TAHILRAMANI,J): ORAL JUDGMENT:(PER SMT.V.K.TAHILRAMANI,J): 1. Through this petition, the petitioner-detenu has impugned the order of detention dated 22.6.2005 [- 2 -] passed by Respondent No.1 Shri.A.N.Roy, Commissioner of Police Greater Mumbai. By the said order, the detenu came to be detained under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons, Act, 1981 (Hereinafter referred to as "M.P.D.A.Act") as he is a slumlord. 2. A perusal of the grounds of detention, shows that the impugned order is founded on one C.R. i.e. C.R.No.5 of 2005 and four incamera statements. The said crime is under Section 3 Z-2(6) of the Maharashtra Slum Area (Improvement Clearance and Redevelopment) Act, 1971. 3. Brief facts relating to C.R.No.5 of 2005 are that: . Unauthorised hutments were constructed on Government land on City Survey No. 263 which was demolished on 2.12.2004 by the Staff of Encroachment and Demolition squad. However, again the unauthorised hutments were constructed on the said land which were demolished again on 17.1.2005. The detenu had constructed unauthorised hutments on [- 3 -] Government land so also, he was provoking others to construct unauthorised hutments on the said vacant Government land. Hence, complaint came to be filed against the detenu. 4. Besides the above C.R., the order of detention is based on four incidents which have been stated by incamera witnesses A to D. We do not think it necessary to go into the details of the said CR or the incidents referred to by the incamera witnesses in order to decide the present petition suffice to say that the incamera witnesses have stated about the activities of the petitioner which are prejudicial to maintenance of public order. 5. We have heard Mr.Tripathi, the learned counsel for the Petitioner-detenu and Mrs.Pai the learned A.P.P. for the State. Although, in this petition, many grounds have been pleaded, Mr.Tripathi has pressed only three grounds i.e. ground Nos. B, D and I. . Ground No.B reads as under: . "B. The Petitioner says and submits that five copies of the representations of detenu were forwarded to the Hon’ble [- 4 -] Advisory Board and the State Government through the Thane Central Prison, Thane on 7.7.2005 also addressed to the State Government for revocation of the order of detention. The Petitioner received a communication dated 17.08.2005 informing him that the said representation of the petitioner is rejected, thereby the State Government has delayed in considering the representation of the detenu. The State Government also did not consider the representation of the detenu independently and expeditiously. The said authority is called upon to explain the above said delay to the satisfaction of this Honourable Court failing which the continued detention will be held illegal and unconstitutional. The concerned Jail authority did not forward the copies of representation to other authority. The order of detention is illegal and bad in law, ought to be quashed and set aside. 6. Mr.Tripathi submitted that five copies of the representation were handed over to the jail authorities on 7.7.2005 by the learned Advocate for the detenu. The said representations were addressed to the State Government and the Advisory Board. Mr.Tripathi submitted that though three copies of the representations were addressed to the Advisory Board, the same were not sent by jail authorities to the Advisory Board and consequently, non-consideration of the same by the Advisory Board would make the continued detention illegal. [- 5 -] 7. As far as the copy of the representation being forwarded to the State Government, there is no grievance made by Mr.Tripathi before us that the said representation was not expeditiously considered. His only grievance is that copy of the representation was not forwarded by the jail authorities to the Advisory Board. 8. The above ground has been replied by the jailor Mr.Sheshrao B.Chawre in para no.2 of his affidavit affirmed on 15.4.2006. In the said affidavit, it is stated that on 7.7.2005 advocate of the detenu on the letter head forwarded copies of representation to be forwarded to the said authorities, however, on the same day, son of detenu by name Santosh Nagnarayan Singh took away four copies out of the five copies which were handed over to the jailor on the ground that same would be personally handed over by him before the Advisory Board. The signature of the son of the detenu, has been obtained by the jail authorities by way of acknowledgement of him having received the said four copies of the representation. It was under these circumstances that the copies of the representations were not forwarded to the Advisory [- 6 -] Board by the jail authorities. 9. Mr.Tripathi has admitted that Santosh Nagnarayan Singh is indeed son of the petitioner. He does not deny the relation. However, it is his contention that the jailor ought not to have returned the copies of the representation to the son of detenu. In our view such a stand cannot be taken by Mr.Tripathi. When the son of detenu made a request to the jail authorities, the jail authorities in all good faith, gave the copies of the representations as per the request of the son to him. Now Mr.Tripathi cannot contend that the jailor could not have done so and the jailor ought to have forwarded the copies of the representation to the Advisory Board. 10. We find that increasingly such tactics have been resorted to by the detenu or on his behalf in order to create confusion and they seek to take advantage of the confusion. The detenu cannot take advantage of their own wrong acts or wrong doings. In the present case, looking to the fact that son of the detenu had requested that the copies of the representation meant for the Advisory Board be [- 7 -] handed over to him by the jail authorities, no grievance can be raised by the petitioner that the jail authorities could not have done so. Thus, in such case, we find no merit in this ground. 11. The next ground i.e. ground ‘I’ relates to delay in issuance of detention order. The said ground is as under: . "I. The Petitioner says and submits that the incident of C.R.No.05/05 took place and case registered on 19.01.2005 and the incidents of four incamera statements have taken place in February, 2005 whereas the impugned order of detention came to be passed much belatedly on 22.06.2005 i.e. after a long lapse of about 4 months. The sponsoring authority is called upon to explain to this Honourable Court as to why not promptly and with sense of urgency the statements are recorded and why recorded in the last week of May, 2005. The order of detention is illegal on delay in issuance Court also. The order is liable to be quashed and set aside." 12. The said ground has been replied by the detaining authority in para 15 of his affidavit. In the affidavit, it is stated as under: . "15. With reference to para 6(I) of the petition, it is submitted that the complaint pertaining to Part VI CR No.05 of 2005 was registered on [- 8 -] 19.1.2005. The detenu was arrested on 19.1.2005. After the arrest of the detenu further investigation was carried out. . During the course of enquiry, it was learnt that even though the detenu had committed several offences, the witnesses were not willing to come forward to make any complaint openly against the detenu due to reign of terror which was created by the detenu and his associates. It was only when assurances were given to the witnesses that their names and identifying particulars would not be disclosed that- four witnesses came forward to give their statements, these statements were recorded on 24.5.2005, 25.5.2005, 26.5.2005 and 27.5.2005. . Thereafter the Sponsoring Authority carefully went through all the material they had collected. They then prepared the necessary sets of documents by getting them typed, xeroxed etc. After the necessary sets of documents were ready, they submitted the same along with the proposal for the detention of the present detenu. . It is stated that the proposal in this case was submitted on 30.5.2005. This proposal was forwarded through the proper channel. It was carefully considered and scrutinised by various authorities at various levels and thereafter the entire material was placed before me. I carefully examined all the material placed before me and after arriving at my subjective satisfaction that it was absolutely necessary to detain the detenu, I passed the order of detention on 22.6.2005. I say that the proposal and papers pertaining to the present detenu was forwarded to the various authorities. Hence, each authority at the different levels had to carefully [- 9 -] scrutinise the proposal and papers pertaining to the present detenu. . It is submitted that the present proposal along with the accompanying papers was submitted as per the usual practice, first to the DCP Zone-XI, he carefully went through all the papers and gave his endorsement on 2.6.2005. It is stated that thereafter the papers came to be forwarded to the Senior Inspector of Police, PCB CID. He carefully went through all the papers and gave his endorsement on 3.6.2005. It is stated that the papers were thereafter forwarded to the Deputy Commissioner of Police (Preventive). The Deputy Commissioner of Police (Preventive) went through all the papers. He gave his endorsement thereon on 6.6.2005. It is stated that 5.6.2005 was holiday. Thereafter all the papers were forwarded to the Additional Commissioner of Police (Crime). He gave his endorsement after considering the proposal and all the papers on 7.6.2005. Thereafter, all the papers were put up before me. . I say that the proposal and papers of the present detenu was perused by me and considered by me and I was of the opinion that it is a fit case for detaining the detenu hence, I gave approval to the said proposal on 10.6.2005. All the papers were then forwarded to the Sponsoring Authority for the purpose of fair typing, for preparing the translation of the documents in the language known to the Detenu and for preparing the necessary sets of documents etc. . After completing all the necessary work in the matters i.e. typing, translation in Hindi language, the necessary sets of documents were received as per the procedure in the Office of Senior PI, PCB, CID. The [- 10 -] Senior Inspector of Police, P.C.B. C.I.D., Mumbai, checked all the documents and gave his endorsement on 21.6.2005. Thereafter the papers were forwarded to Deputy Commissioner of Police (Preventive). He went through all the papers and put his endorsement thereon 22.6.2005. . I once again carefully went through the proposal and the papers accompanying the same and finalised the grounds of detention and contemporaneously issued the Order of Detention on 22.6.2005. Hence, time taken for considering the present proposal and issuing the order is reasonable. In view of the facts and circumstances of this case, it is denied that there is any delay in issuing the Order of Detention. . Looking to the facts of this case, it cannot be said that the live link between the prejudicial activities and the Order of Detention is snapped. So also, it cannot be said that the incidents are stale and remote in point of time and/or the detention and grounds of detention are not proximate to the prejudicial activities of the detenu. In any event looking to the propensity and the potentiality of the detenu to indulge in similar prejudicial activities in future, it cannot be said that the live link is snapped or that the incidents have become stale. It is denied that the order of detention is illegal and the said order is issued belatedly. It is further denied that the order of detention be quashed and set aside. Thus, there is no substance in the say of the detenu in this para. It is stated that the part of the contents of the said para refers to the Sponsoring Authority, hence, the affidavit of the Sponsoring Authority may kindly be referred to. [- 11 -] 13. In relation to delay the sponsoring authority in its reply, has stated thus:- . "3. With specific reference to Paragraph No.6(I) of the petition, it is denied that there is any delay in issuing the order of detention. I say that the Externment Branch deals with all Externment matters, Chapter cases and Detention matters pertaining to the said police station. I say that the said Externment Branch consisted of the Externment Officer i.e. myself at the relevant time and three or maximum four other police staff which included Police Constables and Police Head Constable. . 4. During the course of enquiry, it was learnt that though many persons had suffered at the hands of the detenu, the witnesses were not willing to come forward to make any complaint openly against the detenu due to the feeling of fear which was created by the detenu. It was only when assurances were given to the witnesses that their names and identifying particulars would not be disclosed, that four witnesses came forward to give their statements. These statements were recorded on 24.5.2005 to 27.5.2005. . 5. Thereafter, I carefully went through all the material that was collected. I then prepared the necessary sets of documents by getting them typed, xeroxed etc. After all the necessary sets of documents were ready, I personally checked the same and they were submitted to the Senior Inspector of Police, Kandivali (W) Police Station, on 30.5.2005 for the detention of the present detenu for further detenu action. The Senior Inspector of Police, Kandivali (W) Police Station, [- 12 -] carefully went through the papers and submitted the proposal for detention dated 30.5.2005 through proper channel. . 6. It is stated that the Sr.P.I.Kandivali (W) Police Station, after carefully checking all the papers in this case forwarded the proposal of the detenu dated 30.5.2005 to the Deputy Commissioner of Police Zone-XI, Mumbai. The proposal and papers was carefully considered and scrutinised by various authorities at various levels and thereafter the entire material was placed before the Detaining Authority. (I crave leave to refer to and rely upon the affidavit of the detaining authority for period from the proposal till the issuance of the order of detention. . I say that after the Additional Commissioner of Police (Crime) carefully perused the papers and gave his endorsement thereon, on 7.6.2005, all the papers were put up before the detaining authority. Thereafter, the detaining authority started carefully perusing all the papers. . 6. I say that the detaining authority again carefully went through the proposal and all the papers and he was of the opinion that it was a fit case for detention of the detenu and he gave his endorsement to that effect on 10.6.2005. I say that the detaining authority carefully went through all the papers and the proposal and formulated the draft grounds of detention. Thereafter, on 11.6.2005, the papers were forwarded to Sr.P.I. P.C.B. C.I.D. Thereafter, all the appears were then forwarded to the Sponsoring Authority i.e. Kandivali (W) Police Station on the same day for the purpose of fair typing, for preparing the transaction of the documents in the language known to the [- 13 -] detenu for preparing the necessary sets of documents etc. It is stated that 12.6.2005 was holiday. It is submitted that there were in all 101 pages in the compilation of documents of the detenu. The said compilation of documents were translated in Hindi language which is the language known to the detenu. . 7. After completing all the requirements i.e. translations, typing and zerox etc. I forwarded the proposal along with the necessary sets of documents as per procedure to the Senior P.I. P.C.B. C.I.D. on 21.6.2005. It is stated that 19.6.2005 was holiday. . 8. I say that as stated earlier, the papers in this case were submitted on 21.6.2005. After receiving the papers, the Sr.P.I. P.C.B. C.I.D. carefully went through all the papers and gave his endorsement on 21.6.2005. Thereafter the papers were forwarded to Deputy Commissioner of Police (P) who gave his endorsement on 22.6.2005. Thereafter the papers were forwarded to the detaining authority. Thereafter the detaining authority once again carefully went through the proposal and the papers accompanying the same and finalised the grounds of detention and contemporaneously issued the order of detention on 22.6.2005. In view of the facts and circumstances of this case, it is denied that there is any delay in issuing the order of detention." 14. Looking to the detailed reply given by the detaining authority and the sponsoring authority we find that there is no delay in issuance of detention order. In the present case, the last incamera statement was recorded on 27.5.2005 and [- 14 -] the detention order is dated 22.6.2005. Obviously, delay will have to be computed from the date that the last material came to be known to the sponsoring authority. The last material in the present case is the statement of incamera witness ‘D’ which was recorded on 27.5.2005. The proposal in the present case is 30.5.2005 and as stated earlier, the order of detention was issued on 22.6.2005 i.e. within a period of almost three weeks from the submission of the proposal. Looking to these facts, we find that there is no delay at all in issuing the present order of detention. 15. Thereafter Mr.Tripathi submitted that the incident pertaining to C.R.No.5 of 2005 occurred on 19.1.2005. The detenu came to be granted bail in the said case on 29.1.2005, however, thereafter after the detenu was released on bail, the incamera statements came to be recorded in the month of May, 2005. The said statements have been recorded by the sponsoring authority in order to fill in the gap relating to delay in issuing the order of detention. Mr.Tripathi submitted that it was only because the detenu was successful in getting released on bail that these false statements were [- 15 -] got recorded by the sponsoring authority so that the detenu could be detained. Mr.Tripathi further submitted that the said incamera statements being recorded by the sponsoring authority in such a manner is a disturbing aspect of this case. In support of his submission, Mr.Tripathi has placed reliance on the decision of the Supreme Court in the case of Pradip Nilkanth Paturkar Vs. Pradip Nilkanth Paturkar Vs. Pradip Nilkanth Paturkar Vs. S.Ramamurthi and others S.Ramamurthi and others S.Ramamurthi and others reported in 1993 S.C.C. 1993 S.C.C. 1993 S.C.C. (Cri.) 392. (Cri.) 392. (Cri.) 392. He has placed reliance on para no.13 which is as under: . "13. Coming to the case on hand, the detention order was passed after 5 months 8 days from the date of registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses. A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March, 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act." 16. Mr.Tripathi further contended that recording of the incamera statements at such a belated stage would make them suspect and hence, reliance by the [- 16 -] detaining authority on the said incamera statements would be erroneous and on account of this the order of detention would be vitiated. In support of his contention, he has placed reliance on the decision in the case of Mrs.Jainab Sale Mohammed Vs. Mrs.Jainab Sale Mohammed Vs. Mrs.Jainab Sale Mohammed Vs. M.N.Singh, Commissioner of Police and Ors. M.N.Singh, Commissioner of Police and Ors. M.N.Singh, Commissioner of Police and Ors. reported in 2002 ALL MR (Cri) 2305 2002 ALL MR (Cri) 2305 2002 ALL MR (Cri) 2305 (to which one of us i.e. D.G.Deshpande,J. was party). He has placed reliance on para no.12 which is as under: . "12. So far as the two in-camera statements are concerned, it may be noted that the last in-camera statement was recorded on 29.8.2001 whereas the order of detention came to be passed on 11.10.2001. The delay in passing of the detention order is unexplained. Crime No.89 of 2001 registered against detenu does not make out any case of the detenu having indulged in prejudicial activity affecting public order. The reliance placed on the two in camera statements for supporting the detention order as a link to connect the prejudicial activities as alleged in the aid C.R.No.98 of 2001 is wholly misplaced as the said C.R.No.98 of 2001 does not disclose any such prejudicial activity on the part of the detenu as to affect public order. In fact, statement of witnesses A & B seeking to make out the detenu to be a habitual offender indulging in extortion or the basis of incidents alleged to have taken place in May, 2001 and August, 2001 are themselves suspect as the statements were recorded after a considerable delay. There is no reason why the aid witnesses A & B or other [- 17 -] witnesses to the alleged incident did not approach the police earlier to lodge their complaints. Clearly the incident of 10.5.2001 pursuant to which Crime No.89 of 2001 was registered cannot sustain the order of detention as the alleged acts of the detenu set out in the said C.R. cannot be said to be prejudicial to public order. In the absence of any criminal antecedents being registered against the detenu showing the detenu having indulged in extortion as a habitual offender, the two in camera statements recorded after a considerable delay cast doubts as to their genuineness. Therefore these two in camera statements cannot by themselves sustain the order of detention." 17. Mr.Tripathi has also submitted that recording of incamera statement almost after 3 to 4 months after the detenu came to be released on bail, would have an adverse impact on the detention order. In support of this contention, he has placed reliance on the decision in the case of Asutin William Luis Asutin William Luis Asutin William Luis Pinto Vs. Commissioner of Police, Greater Mumbai Pinto Vs. Commissioner of Police, Greater Mumbai Pinto Vs. Commissioner of Police, Greater Mumbai and Ors. and Ors. and Ors. reported in 2005 All MR (Cri) 28. 2005 All MR (Cri) 28. 2005 All MR (Cri) 28. He has placed reliance on para nos. 6 and 8 which are reproduced below: . "6. It appears that after the detenu was released on bail in C.R.No.119 of 2003 on 5.7.2003, the police recorded two in-camera statements. Statement of ‘A’ came to be recorded on 12.7.2003 and [- 18 -] statement of ‘B’ came to be recorded on 14.7.2003. Both of them referred to the incidents which had taken place in April, 2003 where the detenu and his associates are alleged to have been involved. Those incidents pertain to demands of hafta by giving threats at the point of deadly weapons. Charge sheet in CR no.119 of 2003 came to be filed on 11.8.2003. . 8. In Pradeep Nilkanth Paturkar’s case Pradeep Nilkanth Paturkar’s case Pradeep