LALYA V/S THE COMMISSIONER OF POLICE AND ORS.

Detention is based not on facts proved as per Evidence Act or Cr.P.C. but on the subjective satisfaction of the detaining authority that detention is necessary for prevention of prejudicial activities in future

Case name: Lalya  vs.  The Commissioner of Police and Ors.
Case number: Criminal Writ Petition No. 4838 of 2015
Court: The high court of Bombay
Bench: JUSTICE.V.K.TAHILRAMANI, JUSTICE ANUJA PRABHUDESSAI
Decided on: APRIL 26, 2016
Relevant Act/Sections: Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981, Section 184 of the Motor Vehicles Act, Section 384 of IPC, Criminal Law Amendment Act, Article 22(5) of the Constitution
  • BRIEF FACTS AND PROCEDURAL HISTORY:
  • The petitioner- Lalya @ Kishor Arun Waghmare has been detained pursuant to the detention order dated 20.8.2015 passed by Respondent No. 1 under Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and Video Pirates Act, 1981 (Mah. Act No. LV of 1981) (Amendment-1996) (Amendment-2009) (hereinafter referred to as “MPDA Act”).
  • The grounds of detention shows that the detaining authority was convinced on the basis of material placed before it that the detenu was a dangerous person and had unleashed a reign of terror and had become a perpetual danger to the society at large in the area of Yerwada Police Station, Pune. The people residing in the said area are experiencing a sense of insecurity and are living under a shadow of constant fear, whereby even day to day business and activities of citizens are under threat. Further averment made in the grounds of detention show that the detaining authority was subjectively satisfied that the detenu was acting in a manner prejudicial to the maintenance of public order, hence, it was necessary to detain him.
  • The first ground of challenge which is 6(a) is that the detaining authority has taken into consideration two statements of witnesses “A” and “B” recorded incamera on 25.7.2015 and 10.7.2015. These statements are relied upon by the detaining authority for arriving at his subjective satisfaction, however, the incamera statements were not verified by any Senior Police Officer as per the requirement of law, hence, it cannot be said that the incamera statements are authentic and hence, they cannot be relied on by the detaining authority for passing the order of detention. On account of this, the subjective satisfaction of the detaining authority is vitiated, hence, the order of detention is illegal and bad in law and liable to be quashed and set aside.In relation to verification of statements of two incamera witnesses, it is further stated in ground 6(f) of the petition that “the detaining authority has referred to and relied on two statements of witnesses “A” and “B” recorded incamera on 25.7.2015 and 10.7.2015.
  • It is further submitted in the affidavit that the detaining authority has duly furnished all the relevant documents i.e. in all 493 pages along with the verified notes of both the incamera statements and the same are at Page Nos. 485 to 493. As such the detenu’s right to make effective representation guaranteed under Article 22(5) of the Constitution of India is not at all violated. Hence, the order passed by the detaining authority is legal, just and proper and as per the provisions of law. Hence, deserves to be confirmed.
  • As far as ground 6(f) is concerned, the detaining authority has stated that on 6.8.2015 the Assistant Commissioner of Police, Khadki Division, Pune has called the witnesses “A” and “B” in her office for verification. On 6.8.2015 the Assistant Commissioner of Police, Khadki Division, Pune verified the witnesses “A” and “B” and also verified the truthfulness and genuineness of the statements given by them before the Senior Police Inspector of Yerawada Police Station on 25.7.2015 and 10.7.2015 respectively. Then regarding this verification of truthfulness, the Assistant Commissioner of Police, Khadki Division, Pune has recorded the supplementary statements of witnesses “A” and “B” on 6.8.2015. As such these supplementary statements of witnesses “A” and “B” recorded on 6.8.2015 by the Assistant Commissioner of Police, Khadki Division, Pune is nothing but verification of truthfulness and genuineness of the statements of the witnesses “A” and “B”. These supplementary statements regarding verification of the statements of witnesses “A” and “B” are placed at Page Nos. 489 and 493 of the copies served to the detenu. Moreover, the Assistant Commissioner of Police, Khadki Division, Pune has submitted report dated 6.8.2015 regarding the verification of the truthfulness and genuineness of the statements of the witnesses “A” and “B” to the Respondent/detaining authority. This report is placed at page No. 485 of the copy served to the detenu.
  • In the said report, the Assistant Commissioner of Police, Khadki Division, Pune has mentioned that the facts given in the incamera statements and apprehension entertained by the witnesses “A” and “B” therein are true and reasonable. After perusing the said report, the detaining authority was subjectively satisfied that the facts given in the incamera statements and apprehension entertained by the witnesses “A” and “B” are true and reasonable. Also there is no particular format of verification. As such the order passed by the detaining authority is legal, just and proper.
  • ISSUE BEFORE THE COURT:
  • Whether the detention of the petitioner for offences punishable under Sections punishable under Sections of Code, Act, 1988 and Act, 1959 was valid?
  • RATIO OF THE COURT
  • The court contended document also clearly shows that the two incamera statements were verified by the Assistant Commissioner of Police.  Copy of this document has been furnished to the detenu.  In the present case, in view of the further statements of witnesses A and B dated 6.8.2015 and report of the A.C.P. to detaining authority dated 6.8.2015, we are of the opinion that there is no need at all for the A.C.P. to record his satisfaction on this aspect separately.The further statements of witnesses A & B itself are sufficient to show that the A.C.P. had verified the incamera statements.  The report of the A.C.P. to the detaining authority dated 6.8.2015 by itself is also sufficient to show that the A.C.P. had verified the incamera statements.  Any one of these documents is sufficient to show that incamera statements  were verified by the A.C.P.   Both the report of the A.C.P. and supplementary statements are not necessary and any one of them would have been sufficient. These documents clearly  prove  that a Senior Police Officer i.e. A.C.P. had verified the genuineness of the incamera statements and copies of these documents, as stated earlier, have been furnished to the detenu.
  • None of the judgments cited above lay down any principle that there should be a particular format in which the verification must be done.  The verification no doubt ought to be there.  The incamera statements and the witnesses making them ought to be questioned about them and the genuineness of the incamera statements ascertained.  Thus, there should be a verification of the incamera statements, but it need not be in particular format or answered in any particular description or employing any particular words and expressions.  Similarly none of these decisions say that the verification ought to be appearing on the face of the incamera statements or on the copy of the same supplied to the detenu.  If there is an incamera statement recorded and there is a verification done, the verification can well be contained in a separate report.  So long as the copies of the incamera statements and that report are forwarded to the detaining authority, if that forms part of the material and documents taken into consideration by the detaining authority and furnished to the detenu, then the detention order is not vitiated nor the right to make an effective representation guaranteed under Article 22(5) of the Constitution of India is affected.  From the record of the present case, we have found that there is indeed a verification of the statements recorded incamera and copy of document showing that the incamera statements were verified by a Senior Police Official is furnished to the detenu.  Thus, there is no merit in these two grounds. 
  • The next ground raised by Mr. Tripathi is that the subjective satisfaction of the detaining authority is based on three CRs., one Station Diary entry and statements of two incamera witnesses.
  • The court agreed with the submission of Mr. Tripathi that the incidents relating to CR No. 123 of 2015 and CR No. 3053 of 2015 were not such as to affect the maintenance of public order, however, for reasons recorded below, we do not agree with the latter part of his submission that the detention order is based only on CR No. 3080 of 2015. 
  • As far as the above contention is concerned, we have already observed above that statements of two incamera witnesses have been verified by a Senior Police Officer i.e. Assistant Commissioner of Police and copy of the documents showing that such verification was done has been furnished to the detenu.  Incamera statement of witness “A” shows that people were running helter skelter and shop keepers were closing their shops.  At that time, the shop keeper of the shop in which witness A was,  also told him to leave the shop and hurriedly pushed down the shutter of the shop.   When witness “A” came on the road, the detenu arrived there armed with a sword.  He assaulted witness “A” and snatched Rs.3300/- from the shirt pocket of witness “A”, detenu then pointed out a sword at witness “A” and threatened him that if he made complaint to the police, he would kill him.  Incamera witness “B” has stated that the detenu threatens and collects money from vegetable vendors, businessmen and residents and the detenu has created a reign of terror in the area and nobody dared to complain against the detenu. 
  • Incamera witness “B” has further stated that on the date of the incident, the detenu was threatening shop keepers and handcart owners with a sword, due to which, handcart owners and vegetable vendors ran away.    The detenu then overturned handcart of  witness “B” loaded with potatoes which led to a loss to witness “B”. Thus, it is seen that the incidents relating to both witnesses “A” and “B” are such that they affect the maintenance of public order.  In addition to statements of two incamera witnesses, the details relating to CR No. 3080 of 2015 are also such that the activities of the detenu were prejudicial to the maintenance of public order.  In this case, the complainant approached the police in terrified condition and told them that the detenu was threatening shop keepers and handcart owners with a sword and that the detenu had overturned handcarts and had created chaos.  Due to fear,  people present there, ran helter skelter.
  • On getting this information, the police officers and staff rushed to the spot where they saw the detenu holding sword and threatening shop keepers and handcart owners.  The detenu had created a reign of terror and people present there were terrified.  Handcart owners and vegetable vendors who were present at the spot, ran helter skelter. Investigation in the said case revealed that every month the detenu extorted money from vegetable vendors, grocery shop keepers and tea handcart owners.  Thus, the incident relating to CR No. 3080 of 2015 is also such which affects the maintenance of public order. 
  •  It is seen that incidents relating to CR No. 3080 of 2015 and incamera witness “A” and  witness “B” are of extortion of money in public places.  Such acts are bound to affect public order.  In this connection, reliance can be placed on a decision of the Supreme Court in the case of Hasan Khan Ibne Haider Khan Vs. R.H. Mendonca & Ors. reported in AIR 2000 SC 1146.
  • In this case, it was held that “It is well settled that neither is the detenu an accused nor are detention proceedings his trial.  Detention is based not on facts proved as per Evidence Act or Cr.P.C. but on the subjective satisfaction of the detaining authority that detention is necessary for prevention of prejudicial activities in future. Therefore, rules and principles of criminal jurisprudence in general will not apply to preventive detention.  Some element of suspicion, anticipation and speculation is inherent in the preventive detention.  The detention proceedings are neither criminal nor quasi-criminal, nor judicial nor quasi-judicial in character.  Detention order, more or less, is administrative in nature and the detaining authority is not bound by strict rules of Evidence Act or Cr.P.C.  It may be mentioned that even “in camera” statements can be relied upon for reaching the subjective satisfaction”.
  • The court stated that in the present case after excluding CR Nos. 123 of 2015 and 3053 of 2015, the court have four incidents or grounds on which the detaining authority has placed reliance to issue the order of detention.  From these four incidents, it can certainly be said that the detenu is a dangerous person. On consideration of these four incidents, we hold that the same are germane to arrive at the subjective satisfaction of the detaining authority that even tempo of life of people was disturbed and these incidents resulted in breach of public order and affected the maintenance of public order.
  • DECISION HELD BY COURT:
  • In this case the judgement was given by JUSTICE V.K.TAHILRAMANI that In view of the above, this ground raised by the learned counsel for the petitioner to espouse the case of the detenu, is also of no avail. 
  • Thus, this petition is devoid of substance.  Hence, Rule is discharged.

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