2016 ALL MR (Cri) 4233
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B. R. GAVAI AND A. S. CHANDURKAR, JJ.
Shahjahan w/o. Kalimkhan Samshadkhan Pathan Vs. State of Maharashtra & Anr.
Criminal Writ Petition No.528 of 2015
7th March, 2016
Petitioner Counsel: Shri R.R. VYAS
Respondent Counsel: Shri T.A. MIRZA, A.P.P.
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act (1981), S.3 - Preventive detention - Subjective satisfaction - Impugned order passed on basis of two in-camera statements - However, the order is silent with regard to these statements either seen or facts stated therein being ascertained by Commissioner of Police - Ground raised by petitioner that commissioner failed to discuss with Asst. Commissioner statement regarding unwillingness of people to depose against detenu - Said ground not even controverted by respondent authorities - Subjective satisfaction having been affected, detention order liable to be set aside. (Paras 5, 6)
JUDGMENT
A. S. Chandurkar, J. :- Rule is heard finally with the consent of the counsel for the parties.
2. The petitioner has challenged the order dated 8.4.2015 passed by the respondent no.2 under the provisions of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981, by which an order of detention has been passed against the husband of the petitioner.
3. Shri R.R. Vyas, the learned counsel for the petitioner, inter alia submitted that the in-camera statements of the two witnesses that are the basis of the order of detention have not been verified by the Commissioner of Police before recording his subjective satisfaction and despite that the same have been taken into consideration while passing the order of detention. It is submitted that it has been held by this Court in various judgments including the judgment in Criminal Writ Petition No.660 of 2015 decided on 29.02.2016 that unless such in-camera statements are verified by the Commissioner of Police or that the Police Commissioner has seen the said statements, there would be absence of subjective satisfaction while passing the order of detention. It is, therefore, submitted that on this ground the impugned order is liable to be set aside.
4. Shri T.A. Mirza, the learned Additional Public Prosecutor supported the impugned order and submitted that after considering the entire material and on being subjectively satisfied. the respondent no.2 has passed the impugned order. He also relied upon the affidavit-in-reply filed on record for reiterating the aforesaid grounds.
5. With the assistance of the learned counsel for the parties, we have perused the impugned order. In paragraph 9 of the said order, there is reference to two in-camera statements that has been made the basis of the detention of the husband of the petitioner. The said order is, however, silent with regard to these statements being either seen or the facts stated therein being ascertained by the Commissioner of Police. Though the learned APP placed before us the aforesaid two in-camera statements, the same also do not indicate that the said statements were duly seen and thereafter initialled by the Commissioner of Police. Thus following the view as taken in Criminal Writ Petition No.660 of 2015 as regards the absence of any record of the statements being seen by the Commissioner of Police, thereby affecting his subjective satisfaction, the petitioner is entitled to succeed in the writ petition.
6. It is also to be noted that the petitioner by amending the writ petition, has raised various other challenges to the order of detention. Ground No. (vi.- v) states that no effort was made by the Police Commissioner to discuss the matter with the Assistant Commissioner of Police so as to verify the authenticity of the statements as regards unwillingness of the concerned persons to come forward to give statements against the husband of the petitioner. However, there is no reply filed on behalf of the respondents controverting the said ground. This in fact substantiates the challenge as sought to be raised by the petitioner.
7. In view of aforesaid, the impugned order dated 8.4.2015 is set aside on the ground that same has been passed by the respondent no.2 in absence of subjective satisfaction. Rule is made absolute in the aforesaid terms with no order as to costs.