Detention will not be repealed if the grounds of detention show past offences and a habitual nature of committing past offences : Bombay High Court

 on 30 08 2021 on 30 08 1 13WP 2392 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTIONCRIMINAL WRIT PETITION NO. 2392 OF 2021Sunita Chandrashekhar KapreAged: 48 years Occ:Resident of Alka Niwasm Opp.Sant Gadge Maharaj School Kondhwa Khurd Pune....PETITIONERVersus1.Shri. Amitabh GuptaCommissioner of PolicePune City.2.The State of Maharashtra3.The Superintendent of JailYerwada Central Prison Pune.4.The Secretary Advisory BoardMantralaya Mumbai....RESPONDENTS...Ms. Misbah Solkar for Petitioner.Mr. J.P. Yagnik APP for State. ... CORAM : S. S. SHINDE & N. J. JAMADAR JJ. RESERVED ON: 18th AUGUST 2021. PRONOUNCED ON: 30th AUGUST 2021.JUDGMENTof Section 3 of the said Act read withGovernment order Home DepartmentNo. 1220 CR 200 Spl 3B dated 06.01.2021. Respondent No. 1 directed that the detenue be detainedunder the said Act. The detenue was served with the said detention order andalong with the said detention order another order of same date was sent directing the detenue to be detained in Yerwada Central Prison Pune underthe conditions laid down in the Maharashtra Prevention of DangerousActivities of Slumlords Bootleggers Drug OffendersOrder 1981. The detenue was also served with the communicationpurportedly issued by Respondent No. 1 containing the grounds of detentionon the basis of which the detention order was issued and the documentsBhagyawant Punde PA on 30 08 2021 on 30 08 3 13WP 2392 2021.docaccompanied with its translation alleging that the said grounds of detentionhave been formulated on the basis of said material. Being aggrieved by the saidorders as mentioned herein before the petitioner has filed this petition byinvoking writ jurisdiction under article 226 of the Constitution of India.4.Learned counsel for the petitioner invites our attention to thegroundstoin para 6 of the petition and submits that the orders passedby Respondent No. 1 display complete non application of mind and malafideon the part of the detaining authority. By no stretch of imagination can it besaid that the activities of the detenue are prejudicial to the maintenance ofpublic order entailing his detention under the provisions of the said Act. Noneof the activities of the detenue as mentioned in the grounds of detention canbe said to be disturbing the maintenance of public order. It is submitted thatthere is an inordinate and unexplained delay of two months in passing theorder of detention by Respondent No. 1 inasmuch the last alleged offenceregistered against the detenue is on 04.01.2021 and the detention order hasbeen passed on 030.3.2021. It is submitted that due to the delay of twomonths the live link between the passing of detention order and registration oflast offence has been snapped. The compilation of documents which has beenrelied upon while passing the detention order are running into 375 pages andsame were placed before the detaining authority to formulate the grounds ofBhagyawant Punde PA on 30 08 2021 on 30 08 4 13WP 2392 2021.docdetention arrive at subjective satisfaction and ultimately to pass the order ofdetention. The detaining authority has relied upon the extraneous material asit is mentioned in para 8 of the grounds of detention that Respondent No. 1has relied upon the material mentioned in Para 50.1 5.2 6.1 and 6.2 of thegrounds of detention to pass the order thereby the detaining authority hastaken into consideration extraneous material pertaining to other crimes of year2016 2017 and 2020.5.It is not clear from the grounds of detention whether RespondentNo. 1 before formulating the grounds of detention as a matter of fact gonethrough the opinion of different sub ordinate officers written on the saidproposal. The detaining authority has relied upon the statements of twowitnesses A and B recorded in camera for arriving at subjective satisfaction forissuing the detention order. It is submitted that the aforesaid two statements ofthe witnesses have not been properly verified by the superior officers of therank of Assistant Commissioner of Police. It appears that belated attempt wasmade to verify said statements however there was considerable delay inverifying the statements by the Assistant Commissioner of Police. It issubmitted that without opposing bail application of the detenue theSponsoring Authority moved a proposal for preventive detention before thedetaining authority and the same was approved by the detaining authorityBhagyawant Punde PA on 30 08 2021 on 30 08 5 13WP 2392 2021.docdespite the fact that the detenue was already in judicial custody. The statementof said witnesses seems to be fabricated and got up statements in order to putthe detenue behind bars in preventive detention. It is submitted that in camera statements concerned only with the specific individuals and they havenothing to do with the members of public at large. Therefore at best incidentstated in the said statements can be considered as breach of law and order anddo not disturb the tempo of public or public tranquility at large therefore theorder of detention deserves to be quashed and set aside.6.In support of the aforesaid contentions the learned counsel forthe petitioner has relied upon the judgments in the case of Hanuman RajaramMhatre Vs. The Commissioner of Police Thane & Ors.1 Pushkar Mukherjee& 29 Others Vs. The State of West Bengal.2 Pawan Tukaram Kudale Vs. TheCommissioner of Police.3 Mohamad Ishaq Mohamad Ismail Shaikh Vs.Sanjay Barve & Ors.4 Mr. Shubham Rajendra Hingade Vs. State ofMaharashtra & Anr.5 and Banka Sneha Sheela Vs. The State of Telangana &Ors.6.1Writ Petition No. 4646 201721969SCC 103Writ Petition No. 181184Writ Petition No. 133 2020.5Writ Petition No. 55216Criminal Appeal No. 7321 No. 4729 2021Bhagyawant Punde PA on 30 08 2021 on 30 08 6 13WP 2392 2021.doc7.On the other hand Mr. Yagnik the learned APP appearing forRespondent State relying upon the affidavit filed by Commissioner of Police Pune City Pune i.e. Respondent No. 1 submits that it is abundantly clearfrom the activities alleged against the detenue that he has indulged in seriousoffences covered under Chapter XVI and XVII of IPC so also offencespunishable under Arms Act. It is submitted that though the detainingauthority did not place reliance upon the earlier detention order and offences however the criminal history of the detenue is writ large and cannot beignored. It is matter of record that in 2018 the order of detention was passedagainst the same detenue and he was detained. Learned APP invites attentionof this Court to the affidavit filed by Respondent No. 1 and submits that anexhaustive reply is given to the grounds raised in the petition which is selfexplanatory.Learned APP placed reliance upon the judgment of DivisionBench of this Courtin the case ofDeepak Govind Murudkar Vs. Mendonca Commissioner of Police.7 andsubmits that the offences falling under Chapter XVI and XVII of IPC orChapter V of the Arms Act can be taken into consideration for determiningwhether the person is dangerous person under Section 2(b 1) of said Act asheld in the aforesaid judgment in para 11. It is submitted that delay in issuance7Writ Petition No. 2090 1999Bhagyawant Punde PA on 30 08 2021 on 30 08 7 13WP 2392 2021.docof detention order is not significant and before passing the detention orderviews of various authorities are required to be taken. It is submitted that it ismade clear in the grounds of detention so also in the reply filed byRespondent No. 1 that the detaining authoriy is relying upon para 5.1 5.2 6.1and 6.2 to form his opinion before setting out the grounds of detention.Therefore relying upon the grounds of detention and averments in theaffidavit filed by Respondent No. 1 the learned APP submits that the petitionis devoid of any merit and same deserves to be dismissed in limine. 8.We have given careful consideration to submissions of learnedcounsel for the petitioner and learned APP for Respondent State. With theirable assistance we have carefully perused the pleadings and grounds in thepetition annexures thereto reply filed by Respondent No. 1 grounds ofdetention and the original record produced by the Respondent State. So fargroundandare taken in the petition are concerned those are general innature without referring to a specific ground of detention or any othermaterial. It would be apt to reproduce herein below the groundwhichreads as under:Respondent No. 1 in his reply in para 9stated thus: 9.With reference to para no. 6(c) of the contentsof para are denied. It is submitted that the lastoffence which is registered against the Detenu isKondhawa Cr.No. 11 2021. As the Detenu wasarrested on 04 01 2021 in the said C.R. and05 01 2021 he was produced before J.M.F.C.Cantonment Court and he was in police remand till10 01 2021 & then remanded to judicial custody.On 10 02 2021 he had applied for bail to theHon’ble Session Court and after coming to thenotice of the said fact to the sponsoring authorityi.e. Police Inspector Kondhawa and considering themodus operandi of Detenue to commit the crimeafter released from court on bail. The sponsoringauthority conducted confidential inquiry of theillegal activities of the Detenue and found that theDetenue is a dangerous person and he will againrepeat his illegal activities after released on bail fromthe court and decided to send detention proposal.Therefore on 18 02 2021 the sponsoring authoritysend proposal along with all necessary documents tothe detaining authority i.e. Commissioner of Police Pune. The said proposal is received by the detainingauthority on dated 25 02 2021 through divisionalAsst. Commissioner of Police Pune zonal DeputyCommissioner of Police Pune regional Addl.Commissioner of Police Pune who gave theirBhagyawant Punde PA on 30 08 2021 on 30 08 9 13WP 2392 2021.docendorsement and forwarded the same. All thesenior officers above Asst. Commissioner of Police have applied their mind verified and examined thestatements of the witnesses and history of illegalactivities of Detenue and recommended for thedetention of the Detenue and therefore afterapplication of mind the detaining authority i.e.Commissioner of Police Pune have passed thedetention order on 03 03 2021. Therefore there isno inordinate delay in passing said detention order.I have gone through the documents Ipreliminary approved Detention Order thendictated the Draft grounds of detention and same isforwarded back to prepare the same through properchannel then I received grounds of detention andpapers. I read carefully and subjectively satisfiedpreparation of detention order from receipt of theproposal to my office i.e. The Commissioner ofPolice Pune and passing. 10.We have considered the reply filed by Respondent No. 1 so alsothe original record and we are of the opinion that two months time taken forpassing the order of detention in the facts and circumstances of the presentcase cannot be considered as significant so as to cause the interference in theorder of detention. It is evident from the reply filed by Respondent No. 1 thatthe delay of two months has been satisfactorily explained.11.We have carefully perused the groundwherein it is statedthat Respondent No. 1 has relied upon the extraneous material before arrivingat subjective satisfaction and passing the order of detention. Respondent No. 1in his reply to groundstated as under: Bhagyawant Punde PA on 30 08 2021 on 30 08 10 13WP 2392 2021.doc10.With reference to Para No. 6(d) of thePetition it is submitted that the contents of the saidpara are denied. It is submitted that in para 3.1 it isclearly mentioned that “The past offencesmentioned in the chart of offences have not beenrelied upon while passing the order of detention butis only referred to show that Detenue has habituallybeen committing serious offences. Hence theoffences registered against the Detenue in the year2016 2017 2020 were not taken into consideration.(except crime no. 1134 20 registered on14 11 2020) The detaining authority has reliedupon the material mention in para 5.1 5.2 6.1 and6.2 of the grounds of detention to arrive at hissubjective satisfaction that Detenue is dangerousperson as defied in para 2(b 1) of the MPDA act andcriminal activities of the Detenue as discussed inabove para. no. 6(A). Therefore it shows that thedetention authority have applied his mind and aftergoing through the material placed before him by thesponsoring authority the detention order is came tobe passed which is legal according to the provisionsof law.12.It is clear from reading grounds of detention and also aforesaidaverment in reply filed by Respondent No. 1 that Respondent No. 1 hasplaced reliance upon the material mentioned in para 5.1 5.2 6.1 and 6.2 ofthe grounds of detention to arrive at subjective satisfaction that detenue is adangerous person as defined under the said Act. It is clearly mentioned in thegrounds of detention and affidavit filed by Respondent No. 1 that pastoffences mentioned in the chart of offences and also detention order andproceedings under Section 110(e) of Cr.P.C. are only for the purpose ofBhagyawant Punde PA on 30 08 2021 on 30 08 11 13WP 2392 2021.docshowing that the detenue has been habitual in committing serious offences.Therefore we do not find any substance in groundto the petition.13.It appears that Respondent No. 1 has applied his mind perusedthe opinion of sub ordinate officers and after arriving at subjective satisfactionpassed the order of detention. Therefore there is no substance in ground(G) andare concerned the said groundsraise concern about authenticity of statements of two witness A & B recordedin camera. It is stated in groundthat said in camera statements of twowitnesses seem to be fabricated and got up statements in order to put thedetenue behind bars under preventive detention. In camera statements of saidwitnesses concerned only with the specific individual and they have nothingto do with members of public at large.15.It is stated to the reply to groundthat statements of witnessesA & B are duly verified and examined by Assistant Commissioner of Policewherein on verification the said officer found that the said witnesses aredeposing true facts about alleged incident.Bhagyawant Punde PA on 30 08 2021 on 30 08 12 13WP 2392 2021.doc16.So far ground in respect of bail application is concerned it isstated in the reply that to oppose the bail application and to resort an actionunder preventive detention both are different. In case of Detenue thesponsoring authority satisfied that the illegal activities of the detenue wereprejudicial to the maintenance of public order and also danger to the society atlarge. Therefore sponsoring authority have no other alternative way except toselect the remedy to detain the detenue under the MPDA Act. and the SeniorPolice Officers have verified and examined the material placed before them bythe sponsoring authority and after their satisfaction they have recommendedthe proposal under MPDA Act to the detaining authority and detainingauthority after application of mind passed the order of detention.17.Respondent No. 1 in his reply stated that in due adherence toprovisions of MPDA Act and in particular Section 8(2) of the said Act andarticle 22 of the Constitution of India the order of detention has been passed.18.So far grounds raised by the petitioner about authenticity andgenuineness of in camera statements of witnesses A and B are concerned wehave carefully perused the said statements and we are of the considered viewthat the activities alleged against the detenue are prejudicial to themaintenance of public order in the said area. The detenue and his associatesBhagyawant Punde PA on 30 08 2021 on 30 08 13 13WP 2392 2021.docused deadly weapons like sword so as to create terror in the minds of public atlarge which has impact upon the community residing in the said area. It is amatter of record that inspite of detenue was detained in the year 2018 challenge to said order was negated after his release he did not improve on thecontrary started indulging in serious offences and posing danger to the interestof public at large.19.The judgments relied by the learned counsel for the petitioner aredistinguishable on facts. In that view of the matter and in the peculiar factsand circumstances of this case we are of the opinion that there is no substancein the petition and same is devoid of any merit accordingly stands dismissed.20.Rule stands discharged. ( N. J. JAMADAR J.)(S. S. SHINDE J.)Bhagyawant Punde PA 

Summary: Detention order can encroach on personal liberty and freedom if didn’t have the proper grounds. However if such detention order has justifiable reasons, it is held to be just. This was held in the judgment passed by a two-bench judge comprising HON’BLE JUSTICES: S. S. SHINDE &amp; N. J. JAMADAR, J,, in the matter Sunita Chandrashekhar Kapre V. Commissioner of Police, dealt with an issue where the petitioner filed a petition against a detention order issued under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981. The Petitioner is mother of the detenue who is detained. It has been stated that with a view to prevent the detenue from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him under the Act and, therefore, in exercise of the power conferred by sub Section (2) of Section 3 of the Act. The detenue was served with the said detention order and along with the said detention order, another order of same date was sent, directing the detenue to be detained in Yerwada Central Prison, Pune under the conditions laid down in the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders Order, 1981. The detenue was also served with the communication purportedly issued by Respondent, containing the grounds of detention on the basis of which the detention order was issued, and the documents accompanied with its translation, alleging that the said grounds of detention have been formulated on the basis of said material. Being aggrieved by the said orders as mentioned herein before the petitioner has filed this petition by invoking writ jurisdiction under article 226 of the Constitution of India. The counsel for petitioner submits that the orders passed by Respondent display complete non application of mind and malafide on the part of the detaining authority. By no stretch of imagination can it be said that the activities of the detenue are prejudicial to the maintenance of public order entailing his detention under the provisions of the said Act. None of the activities of the detenue, as mentioned in the grounds of detention, can be said to be disturbing the maintenance of public order. The counsel for respondent submitted that though the detaining authority did not place reliance upon the earlier detention order and offences, however, the criminal history of the detenue is writ large and cannot be ignored.