Criminal Writ Petition No.831 of 2013

25th March, 2014

Petitioner Counsel: Shri R.D. KALRA
Respondent Counsel: Smt. B.H. DANGRE

Cases Cited:
Niyazuddin @ Sonu Sirajuddin Ansari Vs. State of Maharashtra & another, 2013 ALL MR (Cri) 3870 [Para 7]

JUDGMENT

C. V. BHADANG, J. :- By this petition, the petitioner is challenging order dated 26/6/2013 passed by the first respondent in MPDA Case No.8/2013.

2. The brief facts are that, Police Station, Imamwada had made a proposal dated 19/02/2013 for detention of the petitioner, under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, DrugOffenders, Dangerous Persons and Video Pirates Act, 1981 (for short, "the Act) on the ground that the petitioner is a 'dangerous person', within the meaning of Section 2(b1) of the Act on the ground that his activities are prejudicial to the maintenance of even tempo of the social life and the public order. It appears that the Sponsoring Authority had placed reliance on two instances, dated 13/11/2012 and 01/02/2013 in respect of which two separate offences vide Crime Nos. 120/2012 and 3028/2013 were registered with Police Station, Imamwada and chargesheets were filed and the matters were sub judice. The Sponsoring Authority had also relied upon the statements of two witnesses, which were recorded incamera. From the chronology of the dates as set out in paragraph22 of the affidavitinreply filed by the first respondent, it appears that before the proposal reached the competent authority, the petitioner was found involved in yet another offence in Crime No.3099/2013 dated 11/4/2013 for the offence punishable under Section 4/25 of the Indian Arms Act read with Section 135 of the Bombay Police Act. After considering the material, the first respondent came to a subjective satisfaction, and passed the order of detention on 26/6/2013. It has been approved by the State Government on 05/7/2013 and further confirmed, after the receipt of the opinion/report of the Advisory Board on 02/8/2013. Feeling aggrieved, this petition is filed.

3. It is submitted by the learned Counsel for the petitioner that the petitioner has no connection with the alleged offences and the impugned order shows nonapplication of mind. It is also contended that the first respondent failed to take notice of the bail order passed in the matter. It is also contended that two socalled statements of the witnesses recorded incamera are not trustworthy and they have been fabricated to suit the purpose, so as to implicate the petitioner, with some ulterior motive. It is contended that the petitioner cannot be said to be a dangerous person within the meaning of the provisions of the Act and the impugned order shows nonapplication of mind. It is also contended that there is unexplained delay in passing the detention order, which has vitiated the impugned order.

4. On the contrary, learned Public Prosecutor has submitted that the first respondent has properly considered the material on record namely, the two incidents dated 13/11/2012 and 01/02/2013 and the statements of two witnesses recorded incamera. Additionally, the petitioner was found involved in another offence on 11/4/2013, the chargesheet in pursuance of the same was filed on 16/5/2013 and the case papers of the said offence were forwarded to the Additional Commissioner of Police (Crime), Nagpur on 01/6/2013. In the context of the chronology set out in paragraph22 of the affidavitinreply, it is contended that the order cannot be said to be vitiated. It is submitted that although the initial order does not specify the period of detention, the same would be governed by the amended provisions of Section 3 read with Section 13 of the Act. It is, therefore, urged that the petition be dismissed.

5. We have considered the circumstances and the submissions made. It would appear that the first respondent has considered the instances which had allegedly happened as far back as on 13/11/2012 and 01/02/2013 and the two statements recorded incamera. It appears that the first respondent has also considered the alleged incident dated 11/4/2013 in respect of which offence under Crime No.3099/2013 is registered under Section 4/25 of the Arms Act read with Section 135 of the Bombay Police Act. That was not part of the original proposal sent by the Sponsoring Authority. That apart, we also found that the delay in passing the order would be material in this case, in as much as the original proposal is made on 19/02/2013, while the order is passed on 26/6/2013. The last of such incident, which was part of the original proposal was 01/02/2013 and the order is passed, close to five months thereafter.

6. We are conscious that, delay alone and by itself, is not material if it is adequately and properly explained. In the present case we do not find that the delay can be said to be properly explained.

7. The Division Bench of this Court in the case of Niyazuddin @ Sonu Sirajuddin Ansari Vs. State of Maharashtra & another reported at 2013 ALL MR (Cri) 3870, to which one of us (Gavai, J.) was a party, has held that delay of 20 days was fatal, in the facts and circumstances of the case. Thus, on the count of consideration of an extraneous material, namely the incident dated 11/4/2013 and on the point of delay, we find that the order cannot be sustained.

8. In that view of the matter, we hold that the impugned order dated 26th June, 2013 detaining the petitioner is unsustainable. The same is, therefore, quashed and set aside.

The detention of the petitioner is, therefore, held as illegal and confirming orders are also set aside.

The petitioner is directed to be set at liberty forthwith, if not required in any other case.

Ordered accordingly.