Shri Manmoorat R. Pandey v. Commissioner of Police, Thane

1. By this petition, the petitioner challenges the order of detention bearing No. TC/PD/DO/MPDA/20/2023 dated 20th September 2023 issued by respondent no. 1- the Commissioner of Police, Thane in exercise of the powers conferred by sub Section (2) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders and Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (“the M.P.D.A. Act”) for detaining Ashish @ Sonu Manmurad Pande.

2. Perusal of the detention order indicates that the detaining authority has relied upon a criminal complaint registered against the detenu being CR No. 345 of 2023, dated 29th June 2023, for the offences punishable under sections 392, 323, 341, 506(2) read with section 34 of the Indian Penal Code read with section 37(1) and 135 of the Maharashtra Police Act.

3. The allegations against the detenu in the aforesaid CR NO. 345 of 2023 is that the detenu threatened the complainant by using a knife and extorted money by assaulting him. It is alleged that the people around were threatened for coming forward to help the complainant. The detenu was arrested on 30th June 2023 and was granted bail on 19th July 2023. The detaining authority has referred to the statement of witnesses recorded and the investigation papers.

4. The detaining authority has relied upon two in-camera statements dated 3rd August 2023 and 5th August 2023 with reference to the incidents that occurred in the third and fourth week of July 2023, respectively. The allegations made in the incamera statement of witness ‘A’ is that the detenu and his associates threatened and abused the hotel owners, shopkeepers, Auto drivers and hawkers for extortion of money. Witness ‘A’ has alleged that the detenu threatened and abused the witness and extorted money from him by assaulting him. Witness ‘B’ also made similar allegations that the detenu threatened and extorted money by assaulting the witness. Witness ‘B’ has also alleged that the detenu and his associates carry weapons and regularly extort money from shopkeepers, vegetable vendors, and hotel owners by assaulting them. Thus, by relying upon CR registered against the detenu and two in-camera statements, the detaining authority has recorded subjective satisfaction that the detenu is a dangerous person and his activities are prejudicial to the maintenance of public order, and hence, it was necessary to detain him.

5. The learned counsel for the petitioner has raised various grounds challenging the detention order; however, pressed into service ground raised in clause (d) of paragraph 6, which reads as under: “d. The petitioner says and submits that in the compilation of documents furnished to the petitioner at page Nos. 83 of the compilation of documents, which is annexed at (Page No. ) in the memo is FINAL FORM/REPORT (u/Sec.173 Cr. P.C document is placed before the detaining authority and copy of the same is furnished to the detenu to enable him to make effective representation. It is to be noted that the said document which runs into five pages is wholly/partly illegible especially the (right hand side and left hand side of the said pages), and cannot be read with normal vision. The said document is also endorsed as true copy. As a result of supplying illegible copy the detenu is deprived of making any effective representation, this also amounts to noncommunication of grounds of detention, thus violating both facets of article 22(5) of the Constitution of India. The order of detention is illegal and bad in law liable to be quashed and set aside.”

6. The learned counsel for the petitioner submitted that the detenu was not supplied with legible copies of the document relied upon by the detaining authority. She submitted that the final report under section 173 of the Cr. PC in connection with the relied upon CR No. 345 of 2023 contains 5 pages which are illegible especially on the right hand side and left hand side of the pages. Learned counsel specifically referred to the said document to show the illegible part of the said pages. She thus submitted that the illegible pages supplied to the detenu left him in a confused state of mind with regard to the allegations and material against him which is relied upon by the detaining authority, to record subjective satisfaction. She, thus, submitted that supplying illegible copies to the detenu amounts to non-communication of the grounds of detention, thereby depriving the detenu of making an effective representation. She, thus, submitted that the right of the detenu guaranteed under Article 22(5) of the Constitution of India is infringed. Hence, the detention order stands vitiated and continued detention of the detenu has rendered illegal and impermissible.

7. In support of her submissions, the learned counsel for the petitioner has relied upon the decisions of this court in the case of Mrs Jayshree Rajendra Waghmare(Mother of the Detenu) Vs. Commissioner of Police, Pune City and Others 1 and Mrs. Asha Omary Mohamedi Vs. Shri Himingliana Secretary (Preventive Detention) Government of Maharashtra, Home Department, Sachivalaya, Bombay and Others 2

8. Learned APP supported the detention order by relying upon the respective affidavits filed on behalf of the detaining authority and the State Government. The learned APP submitted that all the

2 Criminal Writ Petition No. 994 of 1990, dated 5th March, 1991. documents supplied to the detenu are legible and readable. She submitted that though all the pages are readable the detenu was again supplied with page nos. 83 to 88 on 26th October 2023. Thus, it cannot be said that the petitioner’s right to make an effective representation is affected. Thus, she submitted that there is no substance in the ground raised on behalf of the petitioner.

9. We have considered the submissions made by both the parties. We have perused the record. To examine the ground of challenge made by the petitioner, we called upon the learned APP to produce the original file for our examination. On going through the original file, it reveals that page nos. 83 to 88 were not wholly readable, and especially the left and right sides of the said pages are illegible, and thus the contents of the said pages are not clear; hence, we find that there is substance in the ground raised by the learned counsel for the petitioner who states that the detenu couldn't understand the allegations and the material relied against him, in view of the illegible copies supplied to him.

10. Perusal of the affidavit in reply filed on behalf of the detaining authority reveals that though the contention of the detaining authority is that all the documents supplied to the detenu are legible, the detaining authority again supplied legible copies of pages 83 to 88 to the detenu on 26th October 2023. It is pertinent to note that the detenu submitted his representation on 17th October 2023 and raised specific grounds that the documents supplied to him are not legible.

11. The present petition was also filed on 17th October 2023, raising substantial grounds that the documents supplied to the detenu are not legible. It is further pertinent to note that the detaining authority thereafter supplied legible copies to the detenu on 26th October 2023, i.e. after the date of filing of representation and the date of filing of the petition.

12. It is sought to be contended on behalf of the detaining authority that though the documents are legible, readable pages are again supplied as the petitioner raised ground in the petition that 5 pages were illegible. It is not disputed that even in the representation, the detenu had raised a ground that 5 pages were illegible. The representation made by the detenu is rejected by the State Government on 20th September 2023. The detaining authority supplied legible copies of pages 83 to 88 on 26th October 2023 i.e. after rejection of the representation. Thus, supplying the legible copies after the rejection of the representation was of no help to the detenu to make an effective representation.

13. It is well-settled principle of law that non-supply of legible copies of the documents amounts to non-communication of the grounds of detention. The aforesaid illegible pages are part of final report under section 173 of the Criminal Procedure Code in connection with CR relied upon by the detaining authority, for recording grounds of detention. Thus, non-supply of the relied upon documents would amount to non-communication of the ground of detention in the present case. Thus, we find that there is substance in the ground of challenge raised on behalf of the detenu that non-supply of the legible documents in support of the detention order has deprived the detenu of making an effective representation, thereby violating the right of the detenu under Article 22(5) of the Constitution of India.

14. The learned counsel for the petitioner has rightly relied upon the aforesaid decision of this Court in the case of Jayshree Waghmare. This court, after relying upon various decisions of this court, has held that non-supply of legible copies of documents causes prejudice to the detenu while making an effective representation, and thus, the detention order stands vitiated. A similar view is taken by this court in the cae of Mrs. Asha Omary Mohamedi. This court has held that the document supplied to the detenu is not readable, and the same frustrates the right of making an effective representation and at the same time it also amounts to non-communication of the ground and the material on the basis of which the order of detention is passed. Thus, the principle of law laid down in the aforesaid decisions is squarely applicable to the facts of the present case.