Harshad Jivanrao Mundkar v. State of Maharashtra

1. This petition is filed to challenge the order dated 25th May 2023 passed by respondent no. 2-Commissioner of Police, Thane in exercise of 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 (‘MPDA’Act) for detaining, Tirupati @ Atharva Jivanrao Mundkar. Petitioner is the brother of the detenu.

2. Perusal of the detention order indicates that the detaining authority has relied upon a complaint registered against the detenu vide CR No. 388 of 2022 on 1st December 2022 for offences punishable under Sections 324, 323, 504, 506 and 34 of the Indian Penal Code. The allegation against the detenu in the said CR is that though there was no dispute between the complainant and the detenu, he threatened and assaulted the complainant and his brother. It is alleged that the complainant saw the detenu fighting with his parents and brother, however though the complainant ignored the same, the detenu abused the complainant in filthy language and assaulted him when the complainant questioned him as to why he was unnecessarily abusing him. It is further alleged that the detenu threatened the complainant with dire consequences, and when the complainant went towards his home, the detenu came there with an iron rod accompanied by his brother. The detenu and his brother assaulted the complainant and the complainant‘s brother with an iron rod. It is further alleged that the detenu also threatened the people around when tried to help the complainant. Thus, even the people gathered around were scared and ran away to their houses and shut their doors. The detaining authority has referred to and relied upon the medical certificate in the said case. The detenu was transferred from Chitalsar police station in connection with CR No. 280 of 2022 and was taken into custody in the CR No. 388 of 2022 and produced before the magistrate on 6th December 2022. The detenu was released on bail pursuant to an order dated 6th December 2022. The detaining authority has referred to the statements of five witnesses in connection with the said case who have corroborated the facts of the case, and it appears from the detention order that the said case is pending in the court.

3. The detaining authority has relied upon two in-camera statements recorded on 25th April 2023 and 27th April 2023 with reference to the incidents that occurred in the second week of April 2023 and the third week of April 2023, respectively. Witness ‘A’ has alleged that the detenu and his associates came near the witness and threatened him by holding the knife at the witness’s stomach for extortion of money. It is alleged that the detenu threatened the people around not to come in the way to help the witness. It is thus alleged that the detenu by threatening the witness, extorted money from him. Witness ‘A’ has made allegations that the detenu and his associates carry deadly weapons and roam around in the area, and extort money by threatening the people around. It is alleged that the detenu eats in the hotels but does not pay the bill amounts; hence, the residents of that area, traders and labourers were disturbed and scared of the detenu. The witness has made a specific allegation against the detenu that he and his associates threatened and assaulted the witness by using knife and extorted money from the witness. It is further alleged that he threatened the people around by waving his knife and told them not to come in between the witness and the detenu. Thus, it is alleged that due to fear of the detenu, the people around ran away.

4. Similar allegations are made by witness ‘B’. He also stated that the detenu and his associates carry deadly weapons and roam around in the area, and extort money by threatening the people around. It is alleged that the detenu eats in the hotels but does not pay the bill amounts; hence, the residents of that area, traders and labourers were disturbed and scared of the detenu. He stated that the detenu put knife on the witness’s neck and extorted money. He also threatened the passers-by, and all ran away out of fear.

5. The detention order further indicates that the in-camera statements are verified by the Assistant Commissioner of Police (ACP). The detaining authority has thus relied upon the aforesaid CR and two in-camera statements for recording a subjective satisfaction that the detenu is a dangerous person, and hence, it is necessary to detain him to prevent him from indulging in any further prejudicial activities.

6. Learned counsel for the petitioner has raised various grounds to challenge the detention order. Learned counsel for the petitioner submitted that there is a delay of 5 months and 23 days in issuing the detention order. She submitted that the CR relied upon by the detaining authority is dated 1st December 2022; the detenu was arrested on 5th December 2022 and was granted bail on 6th December

2022. She further submitted that the in-camera statements were recorded on 24th April 2023 for the incidents of the second week of April 2023 and the third week of April 2023, respectively. She further submitted that the proposal by the sponsoring authority is dated 2nd May 2023 and the detention order is issued on 25th May 2023. The learned counsel thus submitted that the detention order was issued after a delay of more than five months from the date of the first incident. In support of the said submissions, learned counsel relied upon the decision of this court in the case of Austin William Luis Pinto Vs Commissioner of Police, Greater Mumbai & Ors[1] and Shekhar Balchandra Satan Vs A. K. Roy[2]. Learned counsel by relying upon said decisions submitted that if the allegation in the CR relied upon by the detaining authority does not contain any public order situation and that if it is a case of law and order situation, delay in issuing the detention order is to be referred to from the date of registration of CR and not from the date of recording of in-camera statements. She submitted that in the present case, in the CR registered against the petitioner, the dispute is a private dispute, and there is no public order situation. She thus submitted that the incamera statements recorded after around four months from the first incident, were recorded only to fill up the gap. She thus submitted that the detention order based on such false and fabricated in-camera statements is illegal, null and void. Learned counsel also submitted that the subjective satisfaction recorded by the detaining authority is thus based on irrelevant and stale grounds, and there is no nexus or live link between the activities and the detention order. 1 2005 ALL MR (Cri) 28

7. Learned counsel further submitted that the documents on pages 1, 17, 33 and 101, supplied to the detenu along with the detention order, are illegible. She submitted that the reliance placed by the detaining authority on the said illegible documents shows nonapplication of mind on the part of the detaining authority and a casual and cavalier exercise of power by the detaining authority. She thus submitted that supplying illegible documents to the detenu amounts to non-communication of the grounds of detention to the detenu, thereby infringing the detenu’s right under Article 22 (5) of the Constitution of India. She thus submitted that the detention order thus stands vitiated and that continued detention of the petitioner is rendered illegal and impermissible.

8. Learned counsel for the petitioner also raised a ground of challenge by submitting that there is no public order situation in the present case either in the CR registered against the detenu or the allegations in the in-camera statements. She submitted that immediately on the day, the detenu was produced before the learned magistrate, he was granted bail. She submitted that the allegations in the CR do not pertain to any public order situation, and the same is a law and order situation, which can be dealt with under ordinary law. She submitted that even the allegations in the in-camera statements are concerning individual allegations, and the public at large is not at all affected. She submitted that the allegations of the CR relied upon by the detaining authority and the allegations in the in-camera statements do not fall in the public order situation. She thus submitted that there was absolutely no reason for invoking detention law against the detenu and that the allegations concerned a law and order situation which could be dealt with under ordinary law.

9. Learned APP supported the detention order by relying upon the affidavits filed on behalf of the detaining authority and the State Government respectively. Learned APP submitted that there is no delay in issuing the detention order. She submitted that after the detenu was released as per the bail order dated 6th December 2022, the detenu again indulged in prejudicial activities, as seen in the incamera statements recorded on 25th April 2023. She submitted that after the proposal was submitted on 2nd May 2023, the same was verified by the ACP on 8th May 2023, and the same was forwarded to the Deputy Commissioner of Police (DCP) Zone-V. The concerned DCP endorsed the same on 10th May 2023 and forwarded it to the ACP, who gave his remarks on 15th May 2023. She further submitted that the Senior Inspector, MPDA cell, received the proposal on 18th May 2023 who scrutinised it and forwarded it to the ACP (preventive) on 18th May 2023. The concerned ACP (preventive) gave his remarks on 19th May 2023, and the papers were submitted to the DCP (Crime). Learned APP submitted that as the charge of ACP (Crime) was with DCP (Crime), he went through the papers and gave his remarks on 23rd May 2023. Thereafter, the detention order was approved by the detaining authority, and the order was issued on 25th May 2023. Learned APP thus submitted that there is no delay in issuing the detention order. In support of her submissions, learned APP relied upon the decision of the Hon'ble Supreme Court in the case of Smt. Phulwari Jagadambaprasad Pathak V R. H. Mendonca and others[3]. Learned APP by relying upon the said decision submitted that the subjective satisfaction of the detaining 3 AIR 2000 SUPREME COURT 2527 authority can be based on a series of contemporaneous incidents. She submitted that the Hon'ble Supreme Court, in the said decision, has interpreted the definition of dangerous person defined in Section 2 (b–

1) and the provision of Section 2 (a) (iv) regarding the meaning of the term “acting in any manner prejudicial to the maintenance of the public order.” She submitted that, as held by the Hon'ble Supreme Court, the deeming clause in the explanation widens the scope of the provision in Section 2(a)(iv). She submitted that the Hon'ble Supreme Court has thus confirmed the detention order by relying upon the incamera statements. She thus submitted that the Hon’ble Supreme Court has held that there is no provision in the Act which lays down the type of material which can confirm the basis of a detention order under Section 3 of the MPDA Act, and thus the detention order can also be based only on in-camera statement. Learned APP thus submitted that even if the CR registered against the petitioner is ignored, the subjective satisfaction recorded by the detaining authority is a valid order based on the in-camera statements.

10. Learned APP further submitted that there is no substance in the ground raised on behalf of the petitioner that the detention order is based on illegible documents. She submitted that all the documents relied upon by the detaining authority are legible documents and there is no substance in the said ground raised on behalf of the petitioner. With reference to the arguments on the basis that the detention order is not based on any public order situation, the learned APP submitted that the allegations made in the CR as well as the in-camera statements shows that there was no law and order situation and that the incident involves the public order situation. Learned APP submitted that the allegations in the in-camera statements clearly show that the activities of the detenu and his associates were creating public order situation affecting the public at large. She submitted that perusal of the allegations by the witnesses of the in-camera statements would reveal that the activities of the detenu and his associates were disturbing the maintenance of the public order, and as such, the detaining authority has rightly recorded a subjective satisfaction based on the allegations in the CR registered against the detenu as well as the two in-camera statements. She thus submitted that the detaining authority is justified in categorising the detenu as a dangerous person as defined under the MPDA Act. She thus submitted that there is no substance in the arguments raised on behalf of the petitioner.

11. Learned APP also relied upon the decision of this court in the case of Vishal Aananda Mahabal Vs State of Maharashtra; Collector and District Magistrate; Superintendent[4] and submitted that this Court confirmed the detention order issued after five months from the date of CR. She submitted that this Court, by relying upon the decision of the Hon'ble Supreme Court in the case of Phulwari Pathak has held that in-camera statements of the witnesses can be utilised for the purpose of arriving at a subjective satisfaction and, thus, it cannot be held that in-camera statements of the witnesses should be excluded from the consideration. She submitted that this Court has held that the argument that live link should be seen from the CR and not from in-camera statements, excluding them from consideration would be contrary to the law laid down in the Supreme Court in the case of 4 2021 LawSuit (Bom) 1417 Phulwari Pathak. She submits that the principles of law laid down by the Hon'ble Supreme Court in the case of Phulwari Pathak, as well as this Court in the case of Vishal Mahabal, are squarely applicable to the facts of the present case. In reference to the arguments of the learned counsel for the petitioner that there is a delay in issuing the detention order, learned APP relied upon the decision of this Court in the case of Kartik Aannadurai Devendar Vs The State of Maharashtra and another[5] and submitted that this Court, by referring to various decisions of the Hon’ble Supreme Court as well as this Court has held that once the detaining authority has properly explained the time taken for verifying the material placed before the detaining authority by the sponsoring authority, based on a CR and in-camera statements containing similar allegations, it cannot be said that there is delay in issuing the detention order. Thus, by relying upon the aforesaid decisions, learned APP submitted that the principles of law laid down in the aforesaid decisions are squarely applicable to the present case, and there is no substance in the grounds of challenge raised on behalf of the petitioner.

12. We have considered the submissions made by both the parties. We have perused the detention order as well as the affidavits relied upon by the learned APP. Perusal of the detention order indicates that the in-camera statements are recorded after a period of more than four months from the date of the order of bail granted to the detenu in connection with the CR registered on 1st December 2022, which is relied upon by the detaining authority. Based on the CR dated 1st December 2022 and the in-camera statements dated 24th April 2023 and 27th April 2023, in connection with the incidents of the second week of April 2023 and the third week of April 2023, respectively, a proposal was submitted on 2nd May 2023. Learned APP has relied upon the affidavit of detaining authority, thereby explaining the steps taken from the date of proposal to the detention order dated 25th May

2023. Thus, the time taken for issuing the detention order from the date of the proposal is explained by the detaining authority in the affidavit. Further, so far as the period from the date of the first incident, i.e. CR dated 1st December 2022 and the date of recording of in-camera statements in the month of April 2023 is concerned, there is no explanation for relying upon the incident occurred prior to more than four months from the date of proposal by the sponsoring authority. Hence, the question to be decided with reference to the challenge to the detention order on the ground of delay in issuing the detention order is concerned, it is necessary to examine the response of the learned APP that even if the ground of CR is ignored, the detention order based on the in-camera statements is valid in view of the principles of law laid down by the Hon'ble Supreme Court in the case of Phulwari Pathak. Hon’ble Supreme Court in the case of Phulwari Pathak has held in paragraph 15 and 16 as under: “15. The detention order against the appellant herein was passed on the allegations that he was persistently engaged in criminal activities which adversely affected the maintenance of public order in the localities, and therefore, with a view to prevent him from engaging in such activities it was necessary to preventively detain him under the provisions of the Act. For consideration of the question whether the appellant could be said to be a dangerous person it is necessary to read the definition of the term in Section 2(b-1) and the provision of Section 2(a)(iv) regarding the meaning of the term "acting in any manner prejudicial to the maintenance of public order." Under the explanation under Section 2(a)(iv) it is provided that public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if any of the activities of any of the persons referred to in the clause directly or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity, among the general public or any section thereof, or a grave or widespread danger to life or public health. The deeming clause in the explanation widens the scope of the [provision in Section 2(a) (iv). It follows that if a person found to be repeatedly engaged in such activities as mentioned in Section 2(b-1) which affect adversely or are likely to affect adversely the maintenance of public order he can be detained as a dangerous person in exercise of the power under Section 3 of the Act.