Pranali Yogesjh Karkhandis v. State of Maharashtra

9. Learned counsel for the petitioner, thus by relying upon the aforesaid decisions, submitted that the delay in issuing the detention order after more than about four and half months from the date of registration of the C.R. against the detenu has snapped the live link from the date of the incident to the issuing of the detention order and thus has vitiated the order of detention. The learned counsel thus submitted that the order of detention be set aside, and the petitioner be released forthwith.

10. Learned APP relied upon the affidavit dated 15th June 2023 of Shri. Anil Eknath Kulkarni, Joint Secretary, Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai, as well as affidavit dated 15th May 2023 of the Commissioner of Police, Thane and affidavit dated 3rd May 2023 of the Senior Inspector of Police, Kasarvadavli Police Station, Thane in support of the order of detention. The learned APP also relied upon the affidavit of Shri.

11. With respect to the submissions made on behalf of the detenu on the delay in issuing the detention order from the date of registration of the offence is concerned, the learned APP submitted that though the incidents referred to in the in-camera statements are of the second and first week of November 2022, i.e. before the detenu was arrested with reference to the aforesaid C.R. registered against him, on careful scrutiny of the in-camera statements, sponsoring authority prepared the necessary documents and submitted the proposal dated 24th December 2022 before the detaining authority. The learned APP submitted that after careful verification of the papers, including the incamera statements, the Assistant Commissioner of Police, Vartak Nagar Division, Thane City endorsed the proposal on 28th December 2022 and forwarded the papers to the Deputy Commissioner of Police, Zone–V. She submitted that thereafter the Deputy Commissioner, after going through the same on 2nd March 2023, forwarded the same to the Additional Commissioner of Police, West Region, who gave his remarks on 5th January 2023 and forwarded it to Senior Police Inspector, M.P.D.A. Cell Thane City. The Senior Police Inspector, M.P.D.A. Cell, received the proposal on 6th January 2023 and, after scrutinising the same, gave his remarks on 10th January 2023. The learned APP, by referring to the affidavit filed on behalf of the detaining authority, submitted that in between, there were two holidays on 7th January 2023 and 8th January 2023 being Saturday and Sunday; the proposal was submitted to the Deputy Commissioner, who gave his remarks on 13th January 2023 and submitted it to the Additional Commissioner of Police (Crime).

12. The learned APP thus submitted that the Additional Commissioner of Police (Crime), on 16th January 2023, endorsed the proposal and, after going through all the papers, approved it on 19th January 2023, and all the papers were then forwarded to sponsoring authority. The learned APP submitted that the sponsoring authority took some time for fair typing for preparing the translation of the documents in the language known to the detenu and for preparing necessary sets of documents. She thus submitted that after completing the necessary work, the Senior Police Inspector, M.P.D.A. Cell verified all the documents and placed the same before the detaining authority. Thereafter, the detaining authority, on carefully going through the proposal and the papers, finalised the grounds for detention and issued the order of detention on 23rd January 2023.

13. The learned APP thus submitted that the last CR registered against the petitioner, the date of arrest of the detenu, as well as his release on bail, and the relevant incidents recorded in the in-camera statements, show that there is a live link of the incidents relied upon for issuing the detention order. She thus submitted that the aforesaid steps taken by the concerned authorities would show that prompt action was taken and that there is no substance in the submissions made on behalf of the detenu that the order of detention is passed on a stale incident and that the live link between the incident and order of detention is snapped in view of any delay.

14. The learned APP, in support of her submissions, relied upon the decisions of this Court in the case of Vishal Mahabal Vs. State of Maharashtra and others[6], Nagnarayan Saryu Singh Vs A. N. Roy, Commissioner of Police and others[7] and Ram alias Pappu Kore Vs. State of Maharashtra and others[8].

15. Before discussing the various decisions of this Court as well as the Hon’ble Supreme Court referred to above, it is necessary to note the relevant facts of the present case, as under:  3rd September 2022: Incident of relied-upon CR  4th September 2022: CR registered  1st and 2nd week of November 2022: Incidents of in-camera statements  14th November 2022: Detenu arrested  5th December 2022: Detenu released on bail  19th December 2022: Two in-camera statements recorded  24th December 2022: Proposal submitted by sponsoring authority

6 Cri. Writ Petition No. 2702 of 2021 dated 4.12.2021 7 (2006) 2 Bom CR (Cri.) 64 8 2023 Cri. LJ 1586  23rd January 2023: Order of detention issued

16. By taking into consideration the aforesaid dates and events, it is necessary to deal with the grounds of challenge raised on behalf of the detenu in the present case. The submissions on behalf of the detenu are twofold: firstly, it was submitted that there is no live link between the incident of the CR relied upon and the order of detention and secondly, that the in-camera statements recorded only after the detenu was released on bail were false and fabricated to fill up the gap between the date of C.R. registered against the detenu and the order of detention.

17. A perusal of the aforesaid dates and events shows that the incidents referred to in the in-camera statements are prior to the date of arrest of the detenu. The order of detention issued on 23rd January 2023 indicates that by relying upon the said CR registered on 3rd September 2022 and on going through the proposal submitted by the sponsoring authority and the two in-camera statements recorded on 19th and 22nd December 2022 and verified by the concerned ACP, the detention order is issued. However, the in-camera statements are recorded fifteen days after the detenu was released on bail.

18. Thus, the fact cannot be ignored that though the incidents referred to in the in-camera statements had occurred prior to the arrest of the detenu, none of the witnesses of the in-camera statements came forward to record statements when the detenu was in custody. Though the incidents referred to in the in-camera statements are prior to the arrest of the detenu, it is only after the detenu was released on bail that the in-camera statements were recorded. If we consider natural human conduct, it is very difficult to believe that the witnesses who kept quiet when the detenu was in custody came forward fifteen days after he was released on bail. Moreover, the Police have not made any efforts to challenge the order granting bail or apply for cancellation of bail on the basis of the incidents about which the in-camera statements were recorded. Thus, the submission that the in-camera statements were created only to facilitate the passing of the detention order has a great deal of substance. Instead of applying for cancellation of bail, the Police submitted a proposal for the detention of the detenu by relying upon the in-camera statements.

19. A perusal of the affidavits relied upon by the learned APP in support of the detention order does not show that any efforts were taken by the police to challenge the order granting bail or apply for cancellation of bail, in as much as the incidents referred to in the incamera statements are prior to the date of arrest of the detenu and the in-camera statements are recorded only after the detenu is released on bail.

20. The relevant aspect with regard to the aforesaid facts and circumstances is that if the in-camera statements are ignored, the detention order is based on a stale incident that occurred prior to more than four months, which snaps the live link between the incident and the order of detention, especially when no objectionable conduct is attributed to the detenu after he is released on bail. Thus, there is substance in the submissions made by the learned counsel for the Petitioner that only to fill in the gap between the date of CR and the order of detention; the in-camera statements were recorded.

21. In view of the aforesaid facts and circumstances, the decisions relied upon by the learned APP will not be of any assistance to support the order of detention. This Court, in the case of Nagnarayan Saryu Singh, was dealing with the ground of challenge that the order of detention was issued after about four months from the date of registration of CR as well as the date of recording the in-camera statements. This Court, in the said decision, has discussed and distinguished the decision of the Hon’ble Supreme Court in the case of Pradip Paturkar and the decision of this Court in the case of Austin Pinto, relied upon by the learned counsel for the Petitioner in the present case. This Court, in the said decision of Nagnarayan Saryu Singh, has also discussed and distinguished the decision of this Court in the case of Jainab Sale Mohammed Vs M.N. Singh and others[9] and further has relied upon the decisions of this Court in the cases of Zebunissa Abdul Majid Vs M.N. Singh and others10 and Deepak Murudkar Vs R.H. Mendonca and others.11

22. Thus, this Court, in the case of Nagnarayan Saryu Singh after 9 2002 ALL MR (Cri.) 2305 10 2002 (Cri Suppl) Bom CR 67 11 2002 (Cri. Suppl) Bom CR 829 discussing the aforesaid decisions, has held that the case of Pradip Paturkar was decided in the year 1992 when the in-camera statements recorded by the sponsoring authority were not verified by the officer of the rank of Assistant Commissioner of Police, which is done now and that the identity of the witnesses of the in-camera statements is also verified. This Court further relied upon the observations of this Court in the case of Zebunissa Abdul Majid, thereby distinguishing the case of Pradip Paturkar, and holding that the Supreme Court has not laid down that in all cases where statements are recorded after the detenu is released on bail, should be viewed with suspicion. This Court also relied upon the proposition laid down by this Court in the case of Deepak Murudkar that the delay has to be computed from the date of the last in-camera statement and not from the date of CR. Thus, this Court, in the case of Nagnarayan Saryu Singh, considered the facts of that case that the detaining authority, after considering all the aspects of the matter, was subjectively satisfied with the genuineness of the material placed before it, and thus, held that verification of statements by the officer of the level of Assistant Commissioner of Police is a sufficient check to hold that the statements are genuine.

23. On perusal of facts in the case of Nagnarayan Saryu Singh, it reveals that the incidents referred to in the in-camera statements had occurred after the detenu was released on bail, and thus the in-camera statements were also recorded after the detenu was set free. However, in the case at hand, the incidents referred to in the in-camera statements are prior to the date of arrest of the detenu and the incamera statements are recorded after the detenu is released on bail. More so, there is no objectionable activity attributed against the detenu after he is released on bail. Thus, in our view, the principles laid down by this Court in the case of Nagnarayan Saryu Singh will not apply in the present case.

24. So far, reliance placed by the learned APP on the decision of this Court, in the case of Vishal Mahabal, is concerned; this Court was dealing with a ground of challenge raised on behalf of the detenu that there is no live link between the last incident and the order of detention and that the period should be computed from the date of registration of CR and not from the dates of incidents referred to in the in-camera statements. Unlike the facts of the present case, in the said case of Vishal Mahabal, the date of the incident referred to in the in-camera statements as well as the date of recording the in-camera statements is after the detenu was released on bail. Thus, the nature of the ground of challenge raised in the present case was not under consideration in the case of Vishal Mahabal. Thus, in our view, even the principles laid down in the case of Vishal Mahabal, will not apply to the facts of the present case.

25. So far, reliance placed by the learned APP on the decision of this Court, in the case of Ram alias Pappu Kore, is concerned; the same deals with a fact situation where reference was made to past cases; however, the detention order was passed by arriving at a subjective satisfaction by relying upon a recent case registered and the in-camera statements recorded. Thus, the principles laid down in the said decision is not applicable to the facts of the case at hand.

26. In so far as the decisions relied upon by the learned Counsel for the Petitioner are concerned, the principles laid down in those decisions are squarely applicable to the case at hand. The Hon’ble Supreme Court, in the case of Pradeep Paturkar, has held that in paragraphs 13 and 14 as under: “13. Coming to the case on hand, the detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenu became successful in getting bail in all the prohibition cases registered against him, that too in the later part of March 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act.

14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order. Accordingly we allow the appeal, set aside the judgment of the High Court and quash the impugned detention order. The detenu is directed to be set at liberty forthwith.” Emphasis Applied Hence, in our view, the observations of the Hon’ble Supreme Court in the case of Pradip Paturkar squarely apply to the facts of the case at hand.

27. In the case of Sama Aruna, the detenu was charged with four FIRs, and he was granted bail in three FIRs, and while in custody in the fourth FIR, to prevent him from seeking bail, he was detained by issuing a detention order. Though the facts in the present case are not completely similar to the facts in the case of Sama Aruna, we find it appropriate to refer to the observations made by the Hon’ble Supreme Court while considering the scope of judicial review. In the said decision, the Hon’ble Supreme Court has held in paragraphs 18, 21, 23 and 26 as under: “ The scope of judicial review

18. While reviewing a detention order, a court does not substitute its judgment for the decision of the executive. Nonetheless, the court has a duty to enquire that the decision of the executive is made upon matters laid down by the statute as relevant for reaching such a decision. For what is at stake, is the personal liberty of a citizen guaranteed to him by the Constitution and of which he cannot be deprived, except for reasons laid down by the law and for a purpose sanctioned by law. As early as in Machindar Shivaji Mahar v. R. [Machindar Shivaji Mahar v. R., 1950 SCC OnLine FC 4: AIR 1950 FC 129], this Court observed: (SCC OnLine FC) “… and it would be a serious derogation from that responsibility if the court were to substitute its judgment for the satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded. … The Court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquility, for “satisfaction” in this connection must be grounded on material which is of rationally probative value.”

21. Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial. ………………

23. In this case, we find the authority has come to a conclusion so unreasonable that no reasonable authority could ever reach. A detaining authority must be taken to know both, the purpose and the procedure of law. It is no answer to say that the authority was satisfied. In T.A. Abdul Rahman v. State of Kerala [T.A. Abdul Rahman v. State of Kerala, (1989) 4 SCC 741: 1990 SCC (Cri) 76], this Court observed, where the authority takes into account stale incidents which have gone-by to seed it would be safe to infer that the satisfaction of the authority is not a genuine one.

26. The influence of the stale incidents in the detention order is too pernicious to be ignored, and the order must therefore go; both on account of being vitiated due to malice in law and for taking into account matters which ought not to have been taken into account.” Emphasis Applied

28. This Court, in the case of Austin Pinto, had held that delay in recording in-camera statements and absence of any explanation for not recording the statements when the detenu was in custody vitiated the order of detention. Even in the case of Austin Pinto, the in-camera statements referred to the incidents that occurred prior to the arrest of the detenu and the in-camera statements were recorded after the detenu was released on bail. Thus, the principles laid down in the case of Austin Pinto squarely apply to the facts of the present case. In the case of Shivkumar Madeshwaran Devendra, though the date of incidents referred to and the date of recording the in-camera statements is after the detenu was released on bail, this Court has held that incidents which are old and stale and in which the detenu has been granted bail cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without trial. In the present case, the date of the incident referred to in the in-camera statements is prior to the date of arrest of the detenu; the in-camera statements are recorded after the detenu was released on bail.

29. The Hon’ble Supreme Court, in the case of Banka Sneha Sheela, has accepted the arguments made on behalf of the detenu that the detention order was totally perverse as it was passed only because anticipatory bail/bail applications were granted; and that the correct course of action would have been for the State to move to cancel the bail that has been granted if any further untoward incident were to take place. In the said case order of detention was issued by relying upon various FIRs registered against the detenu, in which he was granted anticipatory bail/bail. The detaining authority had issued the detention order by recording that recourse to normal law may not be an effective deterrent in preventing the detenu from indulging in further prejudicial activities. The Supreme Court, while accepting the said arguments, held in paragraphs 15 and 32 as under: “15. ………………. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the detenu, there can be no doubt that the harm, danger or alarm or feeling of insecurity among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make-believe and totally absent in the facts of the present case.

32. On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground……………………..” Emphasis applied

30. Thus, considering the facts of the present case, the principles laid down in the aforesaid decisions relied upon by the learned counsel for the Petitioner squarely apply to the facts of the present case.

31. In view of the facts of the present case, we find it necessary to take note of the well-settled principles of law on preventive detention, which holds that all the laws on preventive detention are necessarily harsh, which curtails the personal liberty of a person guaranteed by the Constitution, without a trial; hence, the court has a duty to enquire about the genuineness of the decision of the executive. Considering the aforesaid, we find that in the present case, since the in-camera statements are not recorded when the detenu was in custody raises doubt on it’s credibility in as much as the incidents referred to in the in-camera statements are prior to the date of arrest of the detenu and the in-camera statements are recorded only fifteen days after the detenu is released on bail; and there are no efforts taken by the police to challenge the order granting bail or apply for cancellation of bail by taking recourse to the well-known remedies of ordinary law. Hence, if the in-camera statements are ignored, the order of detention stands based only on one CR, which is registered more than 4 months prior to the date of the detention order. It is important to note that no case is made out that after the detenu was released on bail, he has indulged in any objectionable activity till the date of proposal or even till the date of order of detention. Hence, the stale and solitary case relied upon by the Detaining Authority fails to show any live link with the order of detention and is not sufficient to hold the petitioner as a habitual offender. Thus, we see no reason to invoke the provisions under the preventive detention statute instead of taking recourse to the well-known remedies under ordinary law. As a result, the petition is allowed by passing the following order: O R D E R

I. The petition is allowed, and Rule is made absolute in terms of prayer clause ‘a’, which reads as under: “(a) This Hon’ble court be pleased to issue a Writ of Habeas Corpus or any other appropriate writ, order direction quashing and setting aside the said order of detention dated 23.01.2023 having No. TC/ PD/DO/MPDA/01/2023 and be pleased to direct that the detenu Yogesh Parshuram Karkhandis be set at liberty forthwith.”

II. The detenu is set at liberty forthwith, if not required in any other case.

GAURI GODSE, J. REVATI MOHITE DERE, J.