Kiran Anna Chavan v. State of Maharashtra

1. The Petitioner has challenged the order dated 23.08.2024 passed by the Respondent No. 2-Commissioner of Police, Pune City, bearing outward 1 of 9 KSHITIJ YELKAR no. Crime PCB/DET/LONIKALBHOR/CHAVAN/678/2024. Vide the impugned order, the Petitioner was directed to be detained under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing Essential Commodities Act, 1981. On the same date, by a separate committal order, the Petitioner was directed to be detained in the Chandrapur Central Prison. Alongwith the detention order and the committal order, the Petitioner was served with the grounds of detention dated 23.08.2024.

2. Learned Counsel Shri Kuldeep Nikam for the Petitioner-detenue made the following submissions:-

(i) The incidents relied on by the detaining authority were not affecting the public order. At the highest, it could be said that they are impacting law and order and not the public order.

(ii) There was unexplained delay in passing the detention order. In one of the offences where he was arrested, he was released on 01.06.2024 and thereafter, the detention order was passed on 23.08.2024 which shows that there was no necessity of passing the detention order at all. 2 of 9

(iii) The movement of the proposal shows that it was unnecessarily routed through the offices of the different authorities and ultimately, on one occasion, it was again sent back to the Sponsoring authority and then, it was finally placed before the detaining authority.

(iv) All these show that there was not only delay in passing the order, but there was no necessity of passing the order at all.

(v) Apart from these grounds, he submitted that action on the part of the Sponsoring authority is malafide. The detaining authority has recorded a contradictory opinion in the detention order, which has affected the subjective satisfaction of the detaining authority. At different places, in the detention order different stand is taken. Therefore, the Petitioner is deprived of making an effective representation at the earliest, challenging the detention order.

3. Learned APP on the other hand supported the detention order. He submitted that the action on the part of the detenue was affecting the public order and there was history of offences being continuously committed by the detenue. Therefore, it is quite clear that he was a 3 of 9 habitual offender. The detaining authority has considered his past history to reach this conclusion. Therefore, there was nothing wrong in the passing of the detention order. He submitted that there was no delay in passing the detention order, as the two in-camera statements were recorded on 10.07.2024 and 12.07.2024. Since then, the proposal was accelerated for passing of the detention order, which ultimately culminated in the passing of the detention order on 23.08.2024. Therefore, according to the learned APP, there is no force in the submission that there was delay in passing the detention order.

4. We have considered these submissions. Paragraph no. 3.[1] of the grounds of detention refers to C.R. No. 769 of 2023 registered at Loni Kalbhor Police Station on 14.12.2023 under Sections 324, 323, 504 and 506 read with 34 of the Indian Penal Code. It is mentioned that on 05.01.2024, notice was issued under Section 41(1)(a) of the Criminal Procedure Code. In paragraph no. 3.2, there is reference to Chapter Case No. 49 of 2024 dated 17/01/2024 under Section 107 of the Criminal Procedure Code. It is mentioned that to initiate more effective action, on 24.06.2024, the case was withdrawn before the Special Executive Magistrate, Hadapsar, Division Pune City. At the end of paragraph no. 3, it was mentioned that those preventive actions were shown only to highlight his desperate tendencies to commit violent crime. 4 of 9

5. The Paragraph no. 4 is important, wherein the detaining authority has clearly stated that he had considered the two registered offences mentioned in paragraph nos. 5.[1] and 5.[2] and two in-camera statements mentioned in paragraph nos. 6.[1] and 6.2. The first registered offence mentioned in paragraph no. 5 was C.R. No. 271 of 2024 at Loni Kalbhor Police Station under Sections 324, 504, 506, 143, 147 and 149 of the Indian Penal Code, under Section 4 (25) of the Arms Act and under Section 37(1)(3) read with 135 of the Maharashtra Police Act. It was registered on 16.05.2024. He was arrested on 16.05.2024, and he was released on bail on 01.06.2024. The other registered offence was C.R. No. 337 of 2024 at Loni Kalbhor Police Station under Sections 427, 143, 144, 147, 148, 149, 504 and 506 of the Indian Penal Code, under Section 4(25) of the Arms Act, under Section 37(1)(3) read with 135 of Maharashtra Police Act and under Sections 3 and 7 of Criminal Law Amendment Act. It was dated 23.06.2024. In connection with this offence, he was issued notice under Section 41(1)(a) of the Criminal Procedure Code.

6. Besides this, there were two in-camera statements mentioned in paragraph nos. 6.[1] and 6.2. The statements of the witnesses ‘A’ and ‘B’ were recorded on 10.07.2024 and 12.07.2024 in respect of the incidents 5 of 9 dated 03.07.2024 and 04.07.2024 respectively. In both these separate incidents, the Petitioner had allegedly extorted an amount of Rs. 550/and Rs. 700/- from these two witnesses. These are the main grounds mentioned in Paragraph nos. 5 and 6 of the grounds of detention.

7. Importantly, the Detaining authority has specifically mentioned in paragraph no. 8 that he had mentioned the offences and preventive actions taken in Paragraph no. 3, 3.1, 3.[2] of the grounds of detention to show that the Petitioner was a habitual criminal involved in continuous criminal activities. He has further mentioned that he had relied upon material mentioned in Paragraph Nos. 5.1, 5.[2] and 6.1, 6.[2] of the grounds of the detention to arrive at his subjective satisfaction that the detenue was a Dangerous person as defined under Section 2(b-1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons engaged in Black-marketing Essential Commodities Act, 1981. These statements in the detention order itself are contradictory, because the main ingredient under Section 2(b-1) of the said Act is that the said person should be ‘habitually’ committing the offences (emphasis is supplied). The term ‘Dangerous person’ is defined under Section 2(b-1) of the said Act, which reads thus:- 6 of 9 “‘Dangerous person’ means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959.” Therefore, the main ingredient of that Section that the said person should be habitually committing those offences.

8. The detaining authority has taken contradictory stand; because in paragraph no. 4, he has stated that he had mainly relied on the offences mentioned in paragraph no. 5.1, 5.[2] i.e. C.R. No. 271 of 2024 and 337 of 2024 at Loni Kalbhor Police Station and the two in-camera statements. That does not include the earlier C.R. No. 769 of 2023 of Loni Kalbhor Police Station and the Chapter Case No. 49 of 2024 which is mentioned in paragraph no. 3.2. But in paragraph no. 8, he has mentioned that he had taken these past activities in consideration to observe that he was habitually committing these offences. Thus, it shows non application of mind on his part. This has given rise to confusion thereby affecting the detenue’s rights to make the earliest effective representation. 7 of 9

9. There is another angle to this detention order. In CR No. 769 of 2023 and 337 of 2024 of the Loni Kalbhor Police Station, notice was issued to the detenue, but he was not arrested. That means that the Police Officer did not even feel it necessary to arrest him. Only in C.R. No. 271 of 2024, he was actually arrested. In this background, it is stated Chapter case no. 49 of 2024 was withdrawn on 24.06.2024 to initiate more effective action. This reason is quite interesting. That means on 24.06.2024, the Sponsoring Authority had already decided to take more stringent action against the Petitioner and after that the two in-camera statements came to be recorded on 10.07.2024 and 12.07.2024 and then proposal for detention order was initiated. Therefore, there is substance in the submissions of the learned Counsel for the Petitioner that the Sponsoring authority had deliberately created the material by recording in-camera statements, subsequently, after deciding to withdraw the preventive action under Section 107 of the Criminal Procedure Code on 24.06.2024. Thus, the action on the part of the Sponsoring authority also appears to be malafide.

10. Based on the above discussion, it is quite clear that the detention order is not sustainable and is liable to be set aside.