IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 217 OF 2008 PETITION NO. 217 OF 2008 PETITION NO. 217 OF 2008 Shri Bilal Gulam Rasul Patel ... Petitioner (Detenu) Vs. Shri S.S. Zende & Others ... Respondents Mr. U.N. Tripathi with Mr. M.S. Mohite for the Petitioner (Detenu). Mr. D.S. Mhaispurkar with Mr. S.R. Borulkar, Public Prosecutor for State. CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & S.A. S.A. S.A. BOBDE, JJ. BOBDE, JJ. BOBDE, JJ. DATE DATE DATE : 7TH MARCH, 2008 : 7TH MARCH, 2008 : 7TH MARCH, 2008 P.C. P.C. P.C. : : :- 1) Heard Learned Counsel for the Petitioner- detenu as well as the Public Prosecutor. 2) This petition has been filed by the Petitioner-detenu challenging the order of detention passed against him by the detaining authority on 18/01/2008 under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders and Dangerous Persons Act, 1981. 3) The copy of the grounds of the detention was supplied to the Petitioner- detenu. Learned Public Prosecutor has also filed counter 2 -affidavit. We have examined the record. 4) Learned Counsel for the Petitioner- detenu submits that the detention cannot be sustained on the ground that an important material has not been supplied to the Petitioner- detenu which has deprived him of his right to make an effective representation. He also submits that stale incidents in point of time have been taken into consideration by the detaining authority while coming to the subjective satisfaction that the Petitioner- detenu needs to be detained, as he would be a threat to a public order. He submits that there is a reference made to two criminal cases. One case pertains to the year 2006 and the case was registered on 28th October 2006. The detention order was passed after about 15 months. In another C.R. No.105 of 2007, F.I.R. was registered on 7/6/2007 and the detention order was passed after seven months of registration of this F.I.R. 5) Beside these two F.I.Rs., the detaining authority relied on two in-camera statements recorded from witnesses A and B. The statement of the witness ‘A’ was recorded on 14/11/2007 and he 3 referred to a case pertaining to September 2006. The statement of witness ‘B’ was also recorded on 14/11/2007 and he gave references of an incident relating to 22nd August 2005. Both these incidents are stale and as such the unknown witnesses A and B had also not produced any material which would be relevant for the purposes of recording the satisfaction that the detenu needed to be detained. 6) In addition to it, the law prescribes that if statements of witnesses are recorded in- camera, those statements should be verified by Senior Police Officer as disclosing the facts and have the same verified and that verification should also be communicated to the detenu along with the grounds of detention, so that he is not deprived from making an effective representation. This question has come before this Court on various occasions and there are number of Judgments, such as in Criminal Appeal No. 577 of Criminal Appeal No. 577 of Criminal Appeal No. 577 of 2000 2000 2000 dated 26th July 2000, reported in 2000 ALL MR dated 26th July 2000, reported in 2000 ALL MR dated 26th July 2000, reported in 2000 ALL MR (Cri) (Cri) (Cri) 1503 (Supreme Court), Phulwari 1503 (Supreme Court), Phulwari 1503 (Supreme Court), Phulwari Jagdambaprasad Jagdambaprasad Jagdambaprasad Pathak vs. R.H. Mendonca & Ors., Pathak vs. R.H. Mendonca & Ors., Pathak vs. R.H. Mendonca & Ors., Criminal Criminal Criminal Writ Petition No. 102 of 2000 dated 20th Writ Petition No. 102 of 2000 dated 20th Writ Petition No. 102 of 2000 dated 20th October, October, October, 2000, reported in 2001 ALL MR (Cri) 68 in 2000, reported in 2001 ALL MR (Cri) 68 in 2000, reported in 2001 ALL MR (Cri) 68 in 4 Smt. Smt. Smt. Subhangi Tukaram Sawant vs. Shri. R.H. Subhangi Tukaram Sawant vs. Shri. R.H. Subhangi Tukaram Sawant vs. Shri. R.H. Mendonca Mendonca Mendonca & Ors. AND Criminal Writ Petition No. & Ors. AND Criminal Writ Petition No. & Ors. AND Criminal Writ Petition No. 2046 2046 2046 of 2006 dated 30th March, 2007, Kashinath of 2006 dated 30th March, 2007, Kashinath of 2006 dated 30th March, 2007, Kashinath Chandrakant Chandrakant Chandrakant Ganeshkar vs. Shri A.N. Roy, Ganeshkar vs. Shri A.N. Roy, Ganeshkar vs. Shri A.N. Roy, Commissioner Commissioner Commissioner of Police, Mumbai and others of Police, Mumbai and others of Police, Mumbai and others. 7) From those Judgments, we quote from one of the Judgment in Criminal Writ Petition No.674 of 2003 dated 18th December, 2003 of the Division Bench of this Court, reported in 2004 ALL MR (Cri) 2004 ALL MR (Cri) 2004 ALL MR (Cri) 1974, 1974, 1974, Shri Vijay Ramchandra Angre Vs. Shri S.M. Shri Vijay Ramchandra Angre Vs. Shri S.M. Shri Vijay Ramchandra Angre Vs. Shri S.M. Sangari Sangari Sangari & Ors & Ors & Ors. We are quoting this judgment because learned Public Prosecutor has shown us the record where an Authority has recorded his verification that the statements made by the witnesses were based on the facts. But this verification was not made available to the detenu. Similar were the cases decided by this Court Paragraph 7 of the judgment is reproduced herebelow : 7. "Though from the original file we notice that the in-camera statements have been verified by the Asstt. Commissioner of Police, we are at a loss to know the reason for keeping it back from the detenu though the copies of the statements had been furnished to him. The reply affidavit does not explain the reason for not furnishing the copies of the verification of the said statements to the 5 detenu along with the in-camera statements and the other documents. Following the view taken by the other Division Benches of this Court, the impugned order of detention is liable to be quashed and set aside on the said ground. It is a case of non-supply of documents relied on by the detaining authority which affects the right of the detenu under Article 22(5) of the Constitution to make an effective representation". 8) Since admittedly the verification by the Commissioner of Police was not made available to the detenu, therefore, in view of the judgments passed by various Benches of this Court that would amount to depriving the Petitioner from his right of making an effective representation and as such on this ground, the detention cannot be sustained. 9) The detention Order is, accordingly, quashed and set aside. The detenu shall be released forthwith, if not required in any other case. ( BILAL NAZKI, J.) BILAL NAZKI, J.) BILAL NAZKI, J.) ( S.A. BOBDE, J.) S.A. BOBDE, J.) S.A. BOBDE, J.)