2001 ALL MR (Cri) 48
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

G.D. PATIL AND R.M. LODHA, JJ.

Smt. Vijaya Raju Gupta Vs.Shri. R.H.Mendonca & Ors.

Criminal Writ Petition No. 103 of 2000

20th October, 2000

Petitioner Counsel: Mr. S.R.CHITNIS, Mr. S.V.KOTWAL
Respondent Counsel: Mrs. V.K.TAHILRAMANI

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3 - Detention under - Reliance on in-camera statements - Detaining authority must ascertain and be satisfied about truthfulness of be statements made in camera - Failure to do so vitiates detention order.

2000 ALL MR (Cri) 1503 (S.C.) Rel.on. (Para 6)

Cases Cited:
Phulwari Jagdambaprasad Pathak vs. R.H.Mendonca, 2000 ALL MR (Cri) 1503 (S.C.)=JT 2000 (8) SC 209 [Para 5]


JUDGMENT

R.M.LODHA, J. :- By means of this writ petition filed by the wife of the detenu, the detention order passed by the 1st respondent under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short the said Act) is being challenged. The respondent No.1 by the detention order dated 14.10.1999 ordered detention of the detenu Raju Baburam Gupte to prevent him from acting in any manner prejudicial to the maintenance of public order.

2. Though Mr. S.R.Chitnis, the learned Senior Counsel appearing for the petitioner raised several legal contentions, in our view in the facts of the present case, this criminal writ petition deserves to be allowed on the ground which we indicate hereinafter.

3. From the grounds of detention supplied to the detenu, it is apparent that the detenu is accused in C.R.No.221 of 1999 of offences under Sections 342, 324, 387, 506(2), 114 I.P.C. r.w Sections 3 and 25 of the Arms Act registered at Andheri Police Station on 16.6.1999. In the said Crime registered at Andheri Police Station, the detenu was arrested on that very date. The detenu was ordered to be released on bail by the concerned Metropolitan Magistrate vide order dated 2.7.1999 on detenu executing P.R.bond of Rs.4000/- with one solvent surety in the like amount. The detenu availed of the bail order on 3.7.1999. Besides the said criminal case in which the detenu is one of the accused, from the detention order it transpires that after the bail was granted to the detenu on 3.7.1999, two in camera statements were recorded by the Senior Police Inspector on 25.7.1999 and 26.7.1999 for the incidents which are said to have taken place in the third week of May, 1999 and first week of June, 1999 respectively. The said two in camera statements have been got verified by the Assistant Commissioner of Police. The detaining authority has claimed privilege in the public interest in not disclosing the names of the witnesses whose statements were recorded in camera. The petitioner while challenging the detention order has set up the case that after the release of the detenu on 3.7.1999, false and fabricated statements were recorded which are now shown as in camera statements. By additional ground, particularly ground (Z-B), the petitioner has set up the case that the in camera statements were recorded by inferior authority and also verified by inferior authority and therefore the claim of privilege under section 8(2) of the said Act is not justified in law.

4. While meeting ground E in the affidavit filed by the detaining authority before this court on 13.4.2000, it is denied that false and fabricated statements were recorded after the detenu was released on bail on 3.7.1999. It is further stated in the affidavit filed by the detaining authority that the in camera statements were verified by the higher grade police officer of the rank of A.C.P. In the subsequent affidavit filed by the detaining authority on 3.10.2000, in paragraph 5, the detaining authority reiterated the earlier reply given in response to paragraph EE and further stated that in view of the verification of the in camera statements by Senior Police official of the rank of Assistant Commissioner of Police he was subjectively satisfied that the contents of the in-camera statements were true and genuine. In yet another affidavit filed by the detaining authority on 10.10.2000 it is stated that he was subjectively satisfied that all the materials on which he placed reliance to issue the order of detention was true and genuine. The reason for this is again given in paragraph 5 of the affidavit that the said in camera statements were verified by the Assistant Commissioner of Police. We are not referring to the affidavit of Mr.M.M.Singh since he is not the detaining authority who issued the order and his affidavit is of not much help on the point in issue.

5. In Smt. Phulwari Jagdambaprasad Pathak versus R.H.Mendonca & Ors. reported in JT 2000(8) SC 209 : (2000 ALL MR (Cri) 1503 (S.C.)) the Apex Court has held thus :

"Then comes the crucial question whether in camera statements of persons/witnesses can be utilised for the purpose of arriving at subjective satisfaction of the detaining authority for passing the order of detention. Our attention has not been drawn to any provision of the Act which expressly or impliedly lays down the type of material which can form the basis of a detention order under Section 3 of the Act. Preventive detention measure is harsh, but it becomes necessary in larger interest of society. It is in the nature of precautionary measure taken for preservation of public order. The power is to be used with caution and circumspection. For the purpose of exercise of the power it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act. It is sufficient if from the material available on record the detaining authority could reasonably feel satisfied about the necessary for detention of the person concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. In the absence of any provision specifying the type of material which may or may not be taken into consideration by the detaining authority and keeping in view the purpose the statute is intended to achieve the power vested in the detaining authority should be unduly restricted. It is neither possible nor advisable to catalogue the types of materials which can form the basis of a detention order under the Act. That will depend on the facts and situation of a case. Presumably, that is why the Parliament did not make any provision in the Act in that regard and left the matter to the discretion of the detaining authority. However, the facts stated in the materials relied upon should be true and should have a reasonable nexus with the purpose for which the order is passed."

6. There remains no doubt in the light of the law laid down by the Apex Court that in camera statement of person/witness can be utilised by the detaining authority for the purpose of arriving at subjective satisfaction for passing the order of detention. However, the Apex Court made it clear that the facts stated in the materials relied upon should be true and have a reasonable nexus with the purpose for which the order is passed. Necessary corollary, therefore is that the detaining authority must be satisfied about the truthfulness of the statements made in the in camera statements. Testing it from this touch stone, we find that neither in the detention order nor in the grounds of detention, the detaining authority has stated anything that he was satisfied about the truthfulness of the statements made in the in camera statements. In the present case the petitioner has set up specific case that in camera statements were false and fabricated after the detenu was released on bail. The detaining authority in his first affidavit filed on 13.4.2000 has only denied that false and fabricated statements were recorded after the detenu was released on 3.7.1999. While denying that the documents were fabricated, the detaining authority in his aforesaid affidavit has further stated that the in camera statements were verified by the higher grade police officer of the rank of A.C.P. As a matter of fact, in two subsequent affidavits, this stand has been reiterated and further statement has been made that he was subjectively satisfied that the contents of the in camera statements were true and genuine since it was verified by the Assistant Commissioner of Police. The English translation of the verification made by the Assistant Commissioner of Police below the in camera statements reads, "my statement was translated to me in Hindi which is in accordance with what I stated." This means that the Assistant Commissioner of Police has only verified that the statement made by the witness was recorded as actually made by him. Therefore on the basis of mere verification, without there being something more by way of contemporaneous document of material more over when no such statement is made in the grounds of detention that the statements made in the in camera statement were believed to be true, it is very difficult to hold that the detaining authority was in fact subjectively satisfied that the assertions made in camera statements were true. The detaining authority has to apply his mind about the truthfulness of the assertions made in camera statements which in the facts of the present case seems to have not been done which in our opinion vitiates the detention order.

7. Accordingly, the writ petition is allowed. The order of detention dated 14.10.1999 (annexture "A") is quashed and set aside. The detenu Raju Baburam Gupta is ordered to be released, if not required in any other case. Rule is made absolute in the aforesaid terms.

Petition allowed.