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CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 1088 OF 2023
Mr. Kartik Aannadurai Devendar
Age : 26 years, Occ: Service
Residing at Room No. 490, Laxmi Nagar, Shankar Deul
Near Kalimata Mandir
Mahul Road, Chembur
Mumbai-400 074
(At present Nashik Road Central Jail) Petitioner
2. The Commissioner of Police, Mumbai
Respondents
Mr. Keshav Chavan Advocate for the Petitioner
Mrs. M. H. Mhatre APP for the State
DATED : 28th JUNE 2023.
JUDGMENT
1. Heard learned counsel for the parties.
MASHAL
2. This petition is filed to challenge the detention Order bearing no. 03/PCB/DP/ZONE-VI/2022 passed on 22nd August 2022 by Respondent No. 2-Commissioner of Mumbai in the exercise of the powers under Sub-Section 2 of Section 3 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.
3. Perusal of the said order of detention shows that a list of complaints registered against the Petitioner and the preventive actions taken against the Petitioner are referred to in the order of detention. The order of detention further records that the facts stated in paragraph 8 are relied upon for passing the order of detention. In paragraph 8 of the detention order, Criminal Case being C.R. No. 156 of 2022 dated 22nd March 2022, registered against the Petitioner for the alleged offences punishable under Sections 386, 392, 323, 504 and 506 (ii) of the Indian Penal Code read with Section 37 (1)(a), 135 and 142 of the Maharashtra Police Act is relied upon by the detaining authority. The detention order further reproduces the gist of the in-camera statements of two witnesses recorded on 9th July 2022 and 15th July 2022.
4. The detaining authority has thus relied upon the aforesaid Criminal Case registered against the Petitioner as well as the in- Camera statements for arriving at the subjective satisfaction that the Petitioner is acting in a manner prejudicial to the maintenance of the public order and, thus, found it necessary to detain the Petitioner. The detaining authority has further also considered that the Petitioner is released on bail on 11th April 2022 in connection with C.R. No. 156 of 2022. However, the detaining authority, by referring to the offences committed by the Petitioner and the allegations in the in-camera statements of the two witnesses, has arrived at a subjective satisfaction that Petitioner is likely to indulge in activities prejudicial to the maintenance of the public order in future. Hence, an order of detention is passed for detaining the Petitioner.
5. The learned counsel for the Petitioner has raised various grounds for challenging the order of detention; however, has pressed into service ground raised in clause ‘D’ of paragraph 5 of the petition, which reads as under: “That there is inordinate delay in proposal for detention and passing of order of detention. The honourable Bombay high court observed in judgement 2014 ALL MR (CRI) 2409 that Delay of about one month and 20 days in passing of order on omnibus ground of time being required for effecting translation can not be accepted, order would be vitiated on ground of delay in present case proposal for detention was made on 23/3/2022 and detention order is passed on dated 22/08/2022 hence present detention order is also vitiated on the ground of delay.”
6. Learned counsel for the Petitioner submitted that there is a delay in recording the in-camera statements after the last complaint registered against the Petitioner. He submitted that complaint was registered against the Petitioner on 22nd March 2022, and the Petitioner was released on bail on 11th April 2022. The learned counsel further submitted that the in-camera statements of two witnesses are recorded on 9th July 2022. The incamera statements referred to the incidents of last week and second week of June 2022. The order of detention is passed on 22nd August 2022. The learned counsel thus submitted that the delay in recording the in-camera statements after five months from the last complaint registered against the Petitioner shows that the order of detention is passed on omnibus grounds and that the order is vitiated on the ground of delay and hence, the order of detention be quashed and set aside, and the Petitioner be released forthwith.
7. In support of his submissions, the learned counsel for the Petitioner relied upon the decisions of this Court in the case of Dinesh Kisan Wanjale Vs. The State of Maharashtra[1], Vijay Baburao Avhad Vs. The State of Maharashtra and others[2], Sachin Parshuram Mane Vs. The Commissioner of Pune City and other[3], Shivkumar Madeshwaran Devendra Vs. The State of Maharashtra and others[4] and Vrushali Vilas Ambokar Vs. The State of 1 2023 ALL MR (Cri.) 661
8. The learned APP relied upon an affidavit dated 26th April 2023 of Shri Vivek Phansalkar, Commissioner of Police Mumbaidetaining authority, to support the order of detention. She submitted that though the Petitioner was released on bail on 11th April 2022 with respect to his arrest on 23rd March 2022 concerning C.R. No. 156 of 2022 registered against him on 22nd March 2022, the case was pending under investigation at the time of passing the detention order. She submitted that during the course of the inquiry, it was revealed that the Petitioner has committed various offences, and thus, in-camera statements of two witnesses were recorded. Thereafter, the sponsoring authority, on carefully verifying the material, submitted the proposal for the detention of the Petitioner, on 20th
9. The learned APP thus submitted that the proposal for the detention of the Petitioner was submitted on 20th July 2022 by referring to the in-camera statements recorded on 9th July 2022 and
5 Cri. Writ Petition No. 2105 of 2015 dt. 30.07.2015 15th July 2022. She further submitted that after carefully examining the material placed before the detaining authority, the order of detention was passed on 22nd August 2022. The learned APP submitted that in the affidavit filed on behalf of the detaining authority, all the steps taken for arriving at subjective satisfaction are explained in detail, and thus, there is no delay in passing the detention order as sought to be contended on behalf of the Petitioner. The learned APP thus submitted that prompt action has been taken to pass the detention order and that there is no delay in taking the decision after the proposal was received from the sponsoring authority.
10. In support of her submissions, the learned APP relied upon the decisions of this Court in the case of Arjun Ganpati Devendra Vs. Shri. M. N. Singh & Ors[6], Deepak Govind Murudkar Vs. R H Mendonca, Commissioner of Police[7], Vishal Aananda Mahabal Vs. The State of Maharashtra and others[8] and Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat,[9] the learned APP, in 6 2001 ALL MR (Cri.) 806 7 2000 LawSuit (Bom) 147 8 Cri. Writ Petition No. 2702 of 2021 Dt. 4.12.2021 9 1999 AIR SCW 2222 particular, relied upon paragraph 16 in the decision of Vishal Mahabal, which reads as under; “16. The next point that the Petitioner argued is that there is no live link between the incident and the order of detention, and the detention order is being based on stale incidents. C.R. No. 779 of 2020 was lodged on 14 November 2020, and the detention order was passed on 6 May 2021, i.e. after five months. It was argued that meanwhile, the Petitioner was also released on bail and, therefore, there was no necessity for passing an order of detention, as nothing had happened between 14 November 2020 and the order of detention five months after that, and the two in- camera statements were only created to fill-up the lacuna. According to the learned Counsel for the Petitioner, the starting point for considering whether there is a live link would be the FIR, and the in-camera statement will have to be ignored. The learned APP submitted that the incamera statement of Witness A was recorded on 15 March 2021. The proposal to the Detaining Authority was submitted on 5 April 2021, i.e. within twenty days of recording the in-camera statement. After considering the material placed before the Detaining Authority, on 6 May 2021, the order of detention was issued and, on the same date, the Petitioner was detained and, thus, there is a live link between the incidents and the order of detention and the in-camera statement cannot be ignored.”
11. The learned APP thus submitted that in the present case, there is a live link between the incidents, as referred to in the incamera statements and the order of detention. Hence, it cannot be said that the order of detention is vitiated on the ground of delay in taking action.
12. We have considered the submissions made by both parties. We have perused the record, as well as the decisions of this Court, relied upon by both parties. In the present case, the order of detention specifically refers to the case registered against the Petitioner on 22nd March 2022, as well as his release on bail on 11th April 2022. The in-camera statements of the two witnesses recorded on 9th July 2022 refer to the incidents that occurred in the last week and second week of June 2022 respectively. A perusal of the allegations against the Petitioner in C.R. No. 156 of 2022 are the offences punishable under Sections 386, 392, 323, 504 and 506 (ii) of the Indian Penal Code read with Section 37 (1)(a), 135 and 142 of the Maharashtra Police Act. The allegations made in the in-camera statements show that the allegations against the Petitioner in the said C.R., as well as in the in-camera statements, are similar in nature. Thus, there is substance in the submissions on behalf of the detaining authority with respect to the proclivity of the Petitioner to continue his criminal activities, which are prejudicial to the maintenance of public order.
13. With respect to the submissions made on behalf of the Petitioner regarding in-camera statements being recorded three months after the last complaint registered against the Petitioner is concerned, there is no merit in the said submission. The Petitioner was released on bail on 11th April 2022. In the ground of challenge the Petitioner has submitted that the proposal was submitted by the sponsoring authority on 23rd March 2022 and order of detention was passed on 22nd August 2022, hence there is delay. However, it is not in dispute that the proposal was submitted on 20th The in-camera statements recorded on 9th July 2022 refer to incidents of June 2022 which are similar in nature to the allegations in the said C.R. The explanation given in the affidavit of the detaining authority regarding time taken for issuance of the order of detention is satisfactory. The detaining authority has in detail explained the steps taken for verification of the allegations against the Petitioner and the submissions made by the sponsoring authority.
14. In the decision of this Court in the case of Arjun Ganpati Devendra, it is held that while considering the question of delay in issuance of a detention order, it is not necessary to examine each day’s delay and that the angle of approach has to be as to whether as a whole the delay has been explained and the detaining and sponsoring authority have acted with promptitude. The Hon’ble Supreme Court, in the case of Amanulla Khan, has held that if the test of repeatedness and continuity of the activity is fully satisfied, then in no manner the satisfaction of the detaining authority holding the detenu to be a dangerous person will stand vitiated. The Hon’ble Supreme Court has also held that it is the magnitude of the activities and their effect on the even tempo of life of the society at large or with a section of society that determines whether the activities can be said to be prejudicial to the maintenance of the public order or not. Thus in the said case, the submission on behalf of the detenu that a single incident in which the detenu was alleged to be involved for which the criminal case had been registered will not be sufficient to hold the detenu to be a dangerous person was not accepted by the Hon’ble Supreme Court and the order of detention based on CR registered against the detenu and the incamera statements was confirmed.
15. This Court, in the case of Deepak Murudkar, has held that the delay in issuance of the detention order would be computed from the date of the last in-camera statement and not from the last C.R. registered against the detenu. Thus, in the said case, this Court relied upon the decision of the Hon’ble Supreme Court in the case of Amanuallah Khan, and confirmed the order of detention passed on the basis of the last C.R. registered against the detenu and the two in-camera statements making similar allegations against the detenu.
16. The decision of this Court in the case of Vishal Mahabal holds that once there is a live link between the incidents and the order of detention, the in-camera statements cannot be ignored. Thus, this Court confirmed the order of detention passed on the basis of the last C.R. registered against the detenu and the incamera statements making similar allegations against the detenu.
17. Thus, the view taken in the aforesaid decisions squarely applies to the facts of the present case. The decisions of this Court relied upon by the learned counsel for the petitioner are of no assistance to the petitioner, in view of the different facts of the present case and the ground of challenge pressed into service. In the case of Dinesh Wanjale the only issue involved was whether there was sufficient material available before the detaining authority while detaining the detenu. In the decision of this Court in the case of Vijay Baburao Avhad, the ground of challenge to the order of detention was non-consideration of the order granting bail, while passing the order of detention. Thus, in the said case, the order of detention was set aside on the ground that the copy of the order of granting bail was not referred to and not considered by the detaining authority. In the decision of this Court in the case of Sachin Mane, the order of detention was set aside on the ground that there was no justification for the delay in submitting the report to the State Government as required under the provisions of subsection (4) of section 3 of the MPDA Act. In the said case, the order of detention was also set aside on the ground of non explanation of the delay in passing the order of detention after more than five months from the recording of the in-camera statements.
18. The learned counsel for the petitioner also relied upon the decision of this Court in the case of Shivkumar Madeshwaran Devendra where the order of detention was set aside on the ground of delay of more than three months from the date of grant of bail and delay of four months from the last date of last incident. The order of detention was thus set aside on the ground that there was no satisfactory explanation offered for the delay. Similarly, in the case of Vrushali Vilas Ambokar, this Court has set aside the order of detention on the ground of undue delay in passing the order of detention from the date of recording of in-camera statements by holding that the delay in passing the order of detention, the live nexus between the prejudicial activity was snapped. In the aforesaid ground of challenge raised in clause ‘D’ of paragraph 5 of the petition, the petitioner has relied upon the decision of this Court in the case of Mohin Ahmed v State of Maharashtra.10 In the said case of Mohsin Ahmed the order of detention was set aside by holding that the delay of one month and twenty days in passing the order of detention on an omnibus ground of time being required for effecting translation was not accepted and that verification of the in-camera statements was not satisfactory. Thus, the principles laid down by this Court in the aforesaid decisions relied upon by the learned counsel for the petitioner are of no assistance to the petitioner in view of the different fact of the present case.
19. The decision of this Court in the case Sultan Yakub Qureshi 10 2014 ALL MR(CRI) 2409 Vs. The Commissioner of Police Solapur and others11 was also brought to our notice. However, the same will not be of any assistance to the Petitioner in the facts of the present case. This Court, in the said case of Sultan Qureshi, has set aside the order of detention on the ground that after the last C.R. was registered against the Petitioner, the in-camera statements were recorded after a gap of four months which also referred to the alleged incidents occurred two months prior to the recording of in-camera statements. Thus, this Court held that the delay in passing the detention order between the registration of the F.I.R. and the recording of in-camera statements was fatal to the detention order.
20. In the present case, the delay in passing the detention order is well explained in the affidavit filed on behalf of the detaining authority. The complaint was registered against the Petitioner on 19th March 2022 for the alleged offences. The Petitioner was released on bail on 11th April 2022. The in-camera statements were recorded on 9th July 2022 referring to incidents of last week and second week of June 2022 respectively. Though
11 Cri. Writ Petition No. 610 of 2021 dt. 19.03.2021 the in-camera statements were recorded three months after the last complaint registered against the Petitioner, the allegations in the last C.R. registered against the Petitioner and the allegations in the in-camera statements were similar in nature, referring to incidents occurred within two months of the detenu being released on bail.
21. In the case of Sultan Qureshi, the F.I.R. registered against the detenu was for the offence punishable under Section 302 of the Indian Penal Code and the allegations in the in-camera statements recorded after a gap of four months were different. Hence, the view taken by this Court in the case of Sultan Qureshi is not applicable to the facts of the present case.
22. We have already held that the detaining authority has properly explained the time taken for verifying the material placed before the detaining authority by the sponsoring authority on the basis of CR registered against the Petitioner and the in-camera statements recorded containing similar allegations. Hence, we do not find that there is any delay on the part of the detaining authority in issuing the detention order, that would vitiate the order of detention.
23. Thus, for the reasons stated above, we do not find merit in the submissions made on behalf of the Petitioner. There is no illegality found in the order of detention. We find that the petition is devoid of any merits and the same is dismissed.
GAURI GODSE, J. REVATI MOHITE DERE, J.