Daksh Juber Ghelani v. The Commissioner of Police, Pune City

1) Petitioner has challenged his detention in furtherance of Order dated 13th November, 2023 bearing OW.NO./CRIME PCB/DET/ CHANDANNAGAR/GHELANI/570/2023, passed by the Respondent No.1, the Detaining Authority, under Section 3(2) of The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black-Marketing of Essential Commodities Act, 1981 (for short ‘the MPDA Act’), directing that, the Petitioner be detained, by invoking jurisdiction of this Court under Article 226 of the Constitution of India.

1.1) Along with the Detention Order dated 13th November 2023, the Committal Order and Grounds of Detention of even date are served upon the Petitioner. Petitioner is accordingly detained at Nagpur Central Prison, Nagpur.

2) Heard Ms. Tripathi, learned Advocate for the Petitioner and Ms. P.P. Shinde, learned A.P.P. for the State. Perused entire record produced before us and the Affidavit of Respondent No.1, dated 22nd February, 2024.

3) Learned Advocate for the Petitioner has assailed the impugned Detention Order predominantly on the ground of delay in passing the same, thereby snapping the livelink between the alleged prejudicial activity of the Petitioner and issuance of detention Order by Respondent No.1.

3.1) She submitted that, the Detaining Authority in paragraph 6 of the Grounds of Detention has observed that, after considering the seriousness of the offence, police conducted a confidential inquiry and recorded in-camera statements of two witnesses on 28th October, 2023 i.e., after a gap of about 05 months from the date of lodgment of the said C.R.No.233/2023 on 31st May, 2023. That, the said statements were recorded only to fill up lacunae in the prosecution case and to detain the Petitioner under Section 3(2) of MPDA Act by terming him as a ‘Dangerous Person’ as contemplated under Section 2(b-1) of the said Act.

3.2) That, in view of the ratio laid down by the Hon’ble Supreme Court in the case of Pradeep Nilkanth Paturkar v/s. S. Ramamurthi and others reported in 1993 Supp (2) Supreme Court Cases 61, the Detention Order deserves to be quashed and set-aside on this ground alone, by allowing the Petition.

4) Per contra, Ms. Shinde, learned A.P.P. appearing for the Respondents vehemently opposed the Petition. She pointed out the pleadings from the Affidavit of the Respondent No.1 dated 22nd February,

2024. She submitted that, the Detention Order is passed after complying with necessary legal procedure in that behalf and there is no legal infirmity in passing it. She submitted that, after the police received information that, the activities of the Petitioner in the said area are prejudicial to the maintenance of public order, public peace and tranquility, the Sponsoring Authority forwarded the proposal for detention of the Petitioner to the Detaining Authority. That, the Detaining Authority after considering the material on record, has reached to its subjective satisfaction and has passed Order under Section 3(2) of the MPDA Act, directing detention of the Petitioner. She submitted that, there is no merit in the Petition and it may be dismissed.

5) In the present case, though the criminal antecedents at the discredit of the Petitioner have been mentioned in paragraph 3 of the Grounds of Detention, the Detention Order is passed after taking into consideration one crime registered against the Petitioner and the two incamera statements of witnesses.

5.1) Record indicates that, C.R.No.233/2023 was registered with Chandan Nagar Police Station, Pune against the Petitioner on 27th May, 2023 for offences punishable under Sections 323, 324, 504 read with 34 of the Indian Penal Code and under Sections 3 and 7 of Criminal Law Amendment Act. In the said crime, the Petitioner was arrested on 31st May, 2023 and was immediately released on bail on the same day. The concerned police recorded in-camera statements of two witnesses on 28th October, 2023. The said witnesses apprehended danger to their life and/or retaliation by the Petitioner if their names are revealed and therefore after giving them assurance that, their names would not be disclosed, they agreed to record their statements. The Detaining Authority after perusing the details of the said crime and the in-camera statements of the said two witnesses, reached to its subjective satisfaction that, the Petitioner is a ‘Dangerous Person’ as contemplated under Section 2(b-1) of the said Act.

6) It be noted here that, the said crime i.e., C.R.No.233/2023 was lodged on 27th May, 2023 and the Petitioner was arrested on 31st May, 2023 in that crime. As noted earlier, the Petitioner was immediately released on bail on the same day. The in-camera statements of the two witnesses were subsequently recorded on 28th October, 2023. The two witnesses have stated about the incidents occurred with them on 15th September, 2023 and 17th August, 2023 respectively. As per the pleadings of Respondent No.1, the Sponsoring Authority thereafter forwarded its proposal on 30th October, 2023 to the Detaining Authority and the impugned Detention Order was thereafter passed on 13th November, 2023.

7) In the case of Pradeep Paturkar (supra), the Hon’ble Supreme Court has expressed its anguish about the fact that, the statements of witnesses were recorded only after the detenu became successful in getting the bail. It is further held that, the unexplained delay whether short or long especially when the detenu has taken a specific plea of delay, has to be explained properly.

7.1) Here also in the case in hand, as noted above, the Petitioner was released on bail on 31st May, 2023 and the in-camera statements of the two witnesses were recorded on 28th October, 2023.

7.2) Undoubtedly, there is delay and/or gap of about 05 months in recording the in-camera statements of the said two witnesses namely ‘A’ and ‘B’. After recording the said statements on 28th October 2023, the Detention Order is passed on 13th November, 2023. The Detaining Authority in its Affidavit, has not explained the delay in recording the said in-camera statements of the two witnesses, least to say, has not offered any satisfactory explanation in that behalf. Further explanation with regard to delay in issuing the Detention Order after 28th October, 2023 has also not been averred and/or explained.

8) As noted above, the Detaining Authority has not explained delay of 05 months in recording in-camera statements of the two witnesses. Even otherwise, the livelink between the alleged recording of last offence against the Petitioner and his alleged prejudicial activities on the date of issuing of the Detention Order, has been snapped. The delay in issuing Detention Order would therefore certainly affect the validity of the said Order. The cumulative effect of it is that, the detention order is vitiated on account of delay in issuing it and therefore, it deserves to be quashed and set-aside.