NareshH Patil, J.
1) Through this petition filed under Article 226 of the Constitution of India the order dated 14-9-2012 passed by District Magistrate, Jalgaon, detaining the petitioner for one year in exercise of powers conferred by sub section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short, âthe Act of 1981â) is challenged.
2) The detaining authority was satisfied that the petitioner was possessing dangerous weapons and indulged in creating terror and fear amongst the people. The petitioner committed offenses as mentioned in Chapter 16 and 17 of the Indian Penal Code. The petitioner has no fear of law. Due to the activities of the petitioner sense of insecurity prevailed in the minds of general public. The detaining authority further observed that the petitioner is a rancorous person of vindictive nature who prevents people from lodging complaint against him. There are various offences registered against the petitioner in several police stations of Jalgaon. Despite repeated initiations of preventive actions against the petitioner no improvement was noticed in the behavior of the petitioner. The detaining authority was of the opinion that the tendency of committing offences in a variety of modes was increasing. Due to activities of the petitioner, the petitioner had become a notorious person causing danger to the lives of peace-loving and law-abiding general people of Jalgaon city.
3) The detaining authority had mentioned details of registration of several offences against the petitioner in various police stations of Jalgaon city including Shanipeth Police Station, Zilla Peth Police Station, Jalgaon City Police Station and MIDC Police Station. The steps taken in respect of preventive action initiated against the petitioner were also mentioned which were in the jurisdiction of Shanipeth and Zilla Peth Police Stations. The offences registered against the petitioner from the year 2004 onwards were mentioned.
4) The detaining authority had referred to confidential statements of confidential witness âAâ and witness âBâ. The detaining authority had informed the petitioner in view of the provisions of Section 3(3) of the Act of 1981 that petitioner has a right to make representation against the detention order to the detaining authority i.e. the District Magistrate, Jalgaon. The petitioner was further informed that he has a right to make representation against the detention order with the State Government which could be made through the Superintendent of Prison of the prison wherein the petitioner at the relevant time was lodged. The said representation was to be addressed to the Additional Chief Secretary (Home), Government of Maharashtra. As per the provisions of Section 9 of the Act of 1981 the petitioner was informed that he can make submissions about the detention order with the Advisory Board. The Advisory Board was entitled to hear the petitioner personally.
5) According to the petitioner the detaining authority had considered some of the offences in detail for forming its opinion. In respect of following offences, the petitioner submits that, the detaining authority had exhibited non application of mind:--
(A) SCC No. 261/2008 arising out of Crime No.36/2007 registered at Shanipeth Police Station Jalgoan is shown to have been pending. The said offence was compounded on 29-7-2008. This fact was not brought to the notice of the detaining authority.
(B) Crime No.90 of 2011 was registered in Jalgaon City Police Station. It was mentioned by the detaining authority that charge sheet is filed and the case bearing RCC No.406 of 2011 is still pending. The detaining authority was not made aware that in the said case the petitioner was acquitted by order dated 8-6-2012.
(C) Crime No.101 of 2007 was shown to have been registered in MIDC Police Station, Jalgaon. The detaining authority mentioned that the said case is still pending whereas the petitioner was acquitted by order dated 16-4-2010 in the said case.
It is the petitioner's contention that this vital information was not placed by the sponsoring authority before the detaining authority. This material has weighed with the detaining authority. There is non application of mind on the part of the sponsoring authority and the detaining authority.
6) In respect of in-camera statements of witness âAâ and witness âBâ it was submitted that there is no nexus between the order of detention and the confidential statements. The detaining authority failed to record satisfaction about genuineness of the in-camera statements of the witnesses. The confidential statements do not show any dates of the incidents and blank space is left to be filled up as per the convenience of the authority concerned. The petitioner was released on bail in Crime No.3/2012 on 15th May 2012 and thereafter in-camera statements of witnesses "A" and "B" have been shown to have been recorded. These statements are not genuine. It was submitted that there is no live link established between the incidents, statements of confidential witnesses and the detention order. It was further submitted that there is unexplained delay in passing the detention order by the detaining authority. The detention order was passed on 14-9-2012 while the last alleged incident was dated 17th January 2012.
7) The petitioner further submitted that the sponsoring authority had intentionally kept vital piece of evidence away from the consideration of the detaining authority. In case the entire material was submitted by the sponsoring authority the detaining authority might have taken a different view of the matter.
8) Consequent to the notice issued by this Court, respondent No.2 filed affidavit-in-reply on 15-12-2012. Additional affidavit-in-reply is filed by respondent No.2 through Dnyaneshwar Sadashiv Rajurkar on 25-1-2013.
9) The learned counsel Shri. V.D. Sapkal, appearing for the petitioner submitted that the petitioner was not supplied with all the relevant documents. English translation of Marathi documents was not supplied to the petitioner. Full charge sheets of the cases refereed to and placed before the detaining authority were not supplied to the petitioner. Extract of bail orders was placed on record which did not suffice the purpose. The material record was held up by the sponsoring authority from the detaining authority. It was submitted that the bail orders passed in various cases in respect of the petitioner were not placed by the sponsoring authority before the detaining authority. Out of the cases refereed to by the detaining authority in one case the petitioner was acquitted and in remaining cases the petitioner was released on bail. Except in a case i.e. Crime No.3/12 charge sheet and bail order were not produced by the sponsoring authority before the detaining authority.
10) The learned counsel for the petitioner further submitted that delay in passing the order of detention has caused prejudice to the petitioner. It was submitted that verification recorded below the in-camera statements by the concerned officer do not show satisfaction in respect of genuineness of the statements and the incident concerned. There is no satisfaction expressed as to whether the in-camera statements of the persons were in relation to the incident which was truthful and voluntary.
11) Through the affidavit-in-reply the respondent No.2 had replied the objections raised by the petitioner. The deponent had clarified that certain typographical mistakes occurred while referring to description of offences in respect of complainant Dattatray Narayan Khonde. The deponent denied that on account of the said typographical error the petitioner could not make proper representation. In-stead it was submitted that the petitioner chose not to make any representation. No prejudice is caused to the petitioner inasmuch as, the petitioner, as per the record, was shown assailant using sword to cause injury on the head of Narayan Khonde. The typographical error occurred, according to the deponent, was unintentional and through inadvertence.
12) Police had taken preventive action against the petitioner and had filed criminal cases in 2008 and 2012. Details are provided in the order and in the affidavit-in-reply which show the antecedents of the petitioner.
13) The respondent No.2 had in clear terms taken a stand in para 6 that the fact of registration of offences was considered for the purpose of antecedents of the petitioner. In respect of in-camera statements of witnesses âAâ and âBâ the detaining authority replied that the Police Inspector of Local Crime Branch Jalgaon conducted confidential inquiry. The police got information during inquiry that the petitioner is a dangerous person and nobody was willing to file complaint against the petitioner openly due to fear of retaliation. On the assurance that their names and identity would be kept secret, they shown their willingness to make statement and accordingly their statements were recorded. The Sub Divisional Police Officer, Sub Division, Jalgaon verified the statements of witnesses âAâ and âBâ and submitted it to the respondent No.2. The Sub Divisional Police Officer had verified the facts mentioned in the statements and the apprehensions expressed by witnesses âAâ and âBâ which was found to be true and reasonable.
14) The detaining authority had further detailed out the procedural compliance as required under the provisions of the Act of 1981. The detaining authority referred to Crime No.3 of 2012 in the grounds of detention. The original order of detention was passed in Marathi and English translation of the order was also prepared and forwarded to the State Government. The grounds of detention and other relevant documents were served on the petitioner in Marathi, according to the deponent. It is further submitted that the deponent had filed copies of both the statements at annexure A and B to the affidavit-in-reply. In respect of confidential statements of witnesses âAâ and âBâ, the original copy would indicate that there was endorsement of satisfaction recorded below the statements of these two witnesses by the sponsoring authority. Both, the sponsoring authority and the detaining authority have recorded their satisfaction. However, relevant copies produced by the petitioner along with the petition were not the copies submitted and supplied to the petitioner. It is totally a different copy. The deponent alleges that there is attempt to mislead the Court by submitting wrong document and incorrect and untrue copy. It is further submitted that the copies produced at pages 46 and 48 of the paper book of the petition having seal of the District Magistrate Jalgoan are not found in the original record. Therefore, such copies cannot be relied upon.
15) The learned Additional Public Prosecutor submitted that the detenu was knowing Marathi language and no prejudice is caused to the petitioner on that count. The in-camera statements were recorded after the inquiry officer was convinced that the witnesses were not coming forward to make statement openly against the petitioner. The sponsoring authority expressed its satisfaction and made appropriate endorsement in the verification column. The sponsoring authority had in clear terms mentioned that there was fear in the mind of the witnesses against the petitioner and the sponsoring authority was satisfied with the same. It was further noticed by the sponsoring authority that, the incident explained by witnesses and recorded in the said statement was a true incident.
16) The learned Additional Public Prosecutor submitted that much stress was laid by the petitioner that the details in respect of bail orders passed in earlier cases registered against the petitioner and referred to in the order were not placed before the detaining authority. In the view of the learned Additional Public Prosecutor, these cases lodged from the year 2004 onwards were referred to as a preamble to the detention order. The substance of the detention order is based on in-camera statements and the Crime No.3/2012 in respect of which charge sheet and bail order produced by the sponsoring authority were placed before the detaining authority. It was submitted that no prejudice would be caused to the petitioner in case detaining authority verifies the endorsements and refers to the cases filed against the petitioner earlier right from the year 2004 onwards. The satisfaction of the detaining authority must be based on material placed before it. When such satisfaction is subjective satisfaction it cannot be questioned by the petitioner, neither it be interfered with on the ground that another view was possible for the detaining authority. The detaining authority had explained and replied all the objections raised by the petitioner in the affidavit-in-reply, therefore, the detention order cannot be questioned on the ground of non observance of procedural requirement by the detaining authority.
17) We may refer to the judgments cited by the learned counsel for the petitioner as under:-
DharamdasShamlal Agarwal V/s The Police Commissioner, AIR 1989 SC 1282.
â12. From the above decisions it emerges that the requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. It is clear to our mind that in the case on hand, at the time when the detaining authority passed the detention order this vital fact, namely, the acquittals of the detenu in case Nos. mentioned at Serial Nos.2 and 3 have not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the trial of those cases were pending. The explanation given by the learned counsel for the respondents, as we have already pointed out, cannot be accepted for a moment. The result is that the non-placing of the material fact â namely the acquittal of detenu in the above-said two cases resulting in non-application of minds of the detaining authority to the said fact has vitiated the requisite subjective satisfaction rendering the impugned detention order invalid.â
Meer Mohamadali @ Baba s/o Meer Tojoddin V/s S.B. Kulkarni, 1999 BCI 246.
â10. We fail to understand that how a document which is vital to consider whether it is a fit case to pass an order of detention cannot be taken into consideration by the Commissioner of Police especially when he has specifically made reference that the detenu was released on bail by the Court. The learned Counsel for the petitioner has rightly argued that if the order releasing the detenu on bail had been before the Commissioner of Police, he would have formed some different opinion than the opinion which is formed by him. For the purpose of substantive satisfaction of the authority, all the relevant documents must be there and the order releasing on bail is one of the most relevant document. We find much force in the contention of the learned Counsel for the petitioner. The order of detention is passed without making any reference to the application for bail and the order releasing the detenu on bail, passed by the learned Additional Sessions Judge.â
Anil Damodhar Paunipagar V/s State of Maharashtra, 2000 (Supp.) Bom. C.R. 154.
â12. Now we will take up for consideration the material which was considered by the Commissioner of Police while passing the detention order. As rightly submitted by Mr. Jaiswal, the learned Counsel for the petitioner, the Detaining Authority has taken into consideration extraneous material placed before it for arriving at a subjective satisfaction that the petitioner is a dangerous person as defined under the provisions of M.P.D.A. Act of 1981. It is not disputed that in the 14 cases which were placed before the detaining authority at least in one of such cases i.e. Crime No.408/92 registered against the petitioner and his associates for committing offence under section 307 read with section 34 of Indian Penal Code on 3-8-1992 the petitioner came to be acquitted on 15-1-1999 much before the proposal for detention order came to be placed before the detaining authority. The learned Counsel for the petitioner as well as the learned A.P.P. is not able to apprise us of the progress and development in all the remaining 13 cases even from the record available with the detaining authority. Not only this, the three detentions under the National Security Act, 1980 also weighed on the mind of the detaining authority out of which the petitioner could only place on record the quashing of the detention order passed on 31-3-1994 by the Commissioner of Police under section 3 of the National Security Act in Writ Petition No.161/94 dated 17-1-1995 which has also been not placed before the detaining authority. We further find that as in the earlier detention order which has been quashed by this Court on 17-1-1995 one of the cases listed in para 2 was also within the consideration of the Detaining Authority i.e. the case registered against the petitioner vide Crime No.40/90 for having committed offence under section 4/25 of the Arms Act read with section 135 of the Bombay Police Act registered on 28-2-1994.â
Vijay Damaji Gaidhane V/s State of Maharashtra, 2001 (Supp 2) Bom.C.R. 289.
â12. In respect of the offences referred to in para 5, there is no specific mention in the said paragraph that the same have not been considered for arriving at satisfaction for passing the detention order. In para 5 it is stated that since the day the petitioner had started illegal businesses of bootlegging a number of incident prejudicial to the maintenance of public order had occurred in and around the area of his business and as such, inference could be drawn that those offences under various laws have been committed by the customers who had been daily consuming liquor from the business of petitioner. Though in para 11, para 5 does not find any reference and the said paragraph is excluded for the purpose of arriving at satisfaction, yet, it appears that what is referred to in paragraphs 2,4 and 5 has influenced the judgment of the Detaining Authority. The tenor of the grounds of detention order does suggest the possibility of the Detaining Authority being influenced by what is recorded in paragraphs 2,4 and 5 of the detention order.
Vilas Shamrao Goyar @ Chota Papa V/s State of Maharashtra, 2011(4) Bom.C.R. (Cri.) 468.
â14. The respondentâauthorities ought to have explained in respect of the time gap which was consumed from the date of in camera recording of the statements of the persons till passing the detention order on 17-9-2010 by the District Magistrate, Dhule. It is not known as to why the entire papers concerning the criminal cases including bail orders, acquittal orders were not placed before the detaining authority. No explanation is forthcoming in respect of the delay in deciding representation filed by the petitioner in respect of the order of detention. There is substance in the contention of the petitioner that, if the entire documents in respect of criminal cases which were pending against the petitioner, which was the basis for passing the detention order, were placed before the detaining authority, then the detaining authority could have been placed in a much better position to understand, appreciate and assess the merits of the proposal forwarded by the Police Inspector against the petitioner. From the record made available to this Court it transpired now that the entire information was not forwarded to the detaining authority by the forwarding officer. We do find that there is no explanation in respect of delay in deciding the representation.â
â15. The case of the petitioner will have to be considered in view of the fact that the basis of the detention order is pendency of nine criminal cases. If pendency of the criminal cases was the basis then the authorities concerned ought to have minutely scrutinized, verified as to whether the petitioner secured acquittal in any of the cases or whether he was released on bail. The authorities have not taken precaution in this regard. In the light of the view expressed by the Court in the judgments cited supra we find that, the authorities failed to adhere to the mandatory procedure which ought to have been followed in passing the detention order and confirming the same. Considering all these aspects of the mater and the grounds of challenge raised by the petitioner we find that the petitioner's objections are required to be seriously considered by this Court. In the light of the reply filed and the submissions advanced we find that the order of detention passed by the District Magistrate and confirmed by the State Government through the Under Secretary to Government Home Department (Special) are not sustainable in the eye of lawâ.
AminMehboob Shaikh V/s The District Magistrate, Pune, 2012 AL MR (Cri) 3977.
â5. From the above affidavit, it is amply clear that the documents referred to in paragraph 6(c) of the petition, which according to the petitioner are vital documents were not placed before the Detaining Authority at all. It is admitted by the learned APP during the hearing before us, position that the proposal sent by the Sponsoring Authority consisted only FIR, crime register, remand application and the order of remand application and no other document. Even the vital documents, such as bail application, bail order passed in favour of the petitioner were not placed before the Detaining Authority. If so, it would vitiate the entire decision making process and more particular the subjective satisfaction reached by the Detaining Authorityâ.
PranavTukaram Borse V/s State of Maharashtra, Criminal Writ Petition No.3233 of 2012 decided on December 12, 2012.
â5. In the present case, Detaining Authority was aware of the fact that bail was granted to the detenue. However, in case of 11 offences, admittedly the orders granting bail were not produced before the Detaining Authority. The orders granting bail in these cases were certainly vital documents as the offences alleged against the petitioner were non-bailable offences. Therefore, conditions of bail, if any, imposed therein would have affected the subjective satisfaction of the Detaining Authority one way or the other. Considering the nature of the offences alleged against the petitioner, orders granting bail were certainly vital documents. Therefore, non placing of the orders granting bail will vitiate the subjective satisfaction of the Detaining Authority. Hence, the order of detention is vitiated and the same deserves to be quashed and set aside.â
RushikeshTanaji Bhoite V/s State of Maharashtra, AIR 2012 SC 890.
â10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non placing and non consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authorityâ.
VijayaRaju Gupta V/s R.H. Mendonca, Commissioner of Police, 2001 Cri.L.J. 893.
â6. . . . . . The English translation of the verification made by the Assistant Commissioner of Police below the in-camera statements reads âmy statement was translated to me in Hindi which is in accordance with what I stated.â 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 or material moreover 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 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.â
Abdul Kayyum Shafi Mohamed Shaikh V/s M.N. Shingh, Commissioner of Police, 2003 Bom.C.R. (Cri) 179.
â16. Subjective satisfaction of the Detaining Authority is the result and outcome of all the materials placed before it. From perusal of two C.R. And two in-camera statements, it is clear that the Detaining Authority has arrived at its subjective satisfaction on the facts of C.R.No.98 of 2001. The other C.R.No.49 of 2001 is for offences under section 324 read with section 34 of I.P.C. in which the blows with chopper and iron rod were given by the co-accused of the detenu who is only alleged to have been armed with chopper and handed over chopper to his associate Sajid who gave the blow with chopper on the head of the complainant. The facts of this C.R. could not be said to have influenced the Detaining Authority in arriving at its subjective satisfaction. The two in-camera statements also could not have influenced the Detaining Authority as the facts stated therein are unverified, moreover, they do not appear to be serious enough to affect public order.â
18) We may refer to the judgments relied upon by the learned Additional Public Prospector as under:-
Anil Dattu Pawar V/s Himansu Roy, Commissioner of Police, 2005(2) Bom.C.R.(Cri.) 21.
â33. The next ground of challenge relaters to the improper verification in relation to the in-camera statements. It is the contention of the learned Advocate for the petitioner that three in-camera statements which are referred to in the grounds of detention and relied upon by the detaining authority were not properly verified, as required under the law. According to the learned Advocate for the petitioner, the verification should disclose proper satisfaction of the authority regarding the genuineness of the statement and that should be apparent from the verification recorded by the officer and in the absence thereof, such a statement cannot be said to be an authentic statement. Reliance is placed in that regard in the decision of (Shri. Vidyadhar H. Varma v. Shri. R.H. Mendonca and others) 29, reported in 2000 ALL.M.R. (Cri.) 773. The learned A.P.P., on the other hand, drawing attention to the verification recorded by the officers and the affidavit filed by the Assistant Commissioner of Police, who had recorded the verification, has submitted that the records clearly disclose that the witnesses were personally interrogated by the officer and he was satisfied about the identity of the witnesses as well as the truthfulness of the incidents narrated and the fear expressed by them and thereupon he had made the necessary endorsement.â
â35. The Division Bench of this Court in Shri. Vidyadhar H. Varma case (supra) had undoubtedly refused to rely upon the in-camera statements in the said case on the ground that the veracity and genuineness thereof was not properly ensured by counter checking by a superior authority through an independent confidential departmental inquiry. At the same time, it is to be noted that in the said case the subjective satisfaction of the detaining authority was solely based on the in-camera statements and there was no other material relied upon in support of the order of detention, and in those facts the Division Bench had refused to rely upon the in-camera statements in the absence of proper steps being taken to ensure the veracity and genuineness of those statements. Besides, the Division Bench had clearly observed that âwe should not be misunderstood that we are suggesting a machinery or procedure to ensure that in-camera statements are generally made.â Obviously therefore, the Division Bench has not laid down any law as regards the procedure to be followed for the purpose of ensuring the veracity or the genuineness of the in-camera statements. Once the in-camera statement apparently discloses proper verification regarding the truthfulness of such statement and the identity of the person to the satisfaction of the officer verifying the statement, certainly no fault can be found with the verification and therefore the challenge on the ground of defective verification does not survive.â
â37. Indeed in Debu Ghose's case (supra), it was clearly held that an order of detention can be passed even if a prosecution was launched against the detenu but was withdrawn before the order was made. It was also ruled therein that non-mentioning of the name of one of the detenus and the names of his associates in the grounds would not be a defect sufficient to render the order of detention to be illegal when sufficient particulars regarding the time and place of occurrence and the actual acts committed by the detenu are disclosed in the grounds, which could enable the detenu to make an effective representation. The learned A.P.P. has also drawn attention to section 5-A of the MPDA Act which clearly empowers the authorities to segregate the grounds and justify the order on some or only on one ground if it cannot be justified on other grounds.â
ShahidMohd. Yusuf Shaikh V/s Shri. M.N. Singh, 2003 ALL MR (Cri) 857.
â22. The learned APP brought to our notice another judgment of the Hon'ble Supreme Court in the case of Smt. K. Aruna Kumari Vs. Govt. of A.P. and others â AIR 1988 Supreme Court 227 wherein the Hon'ble Supreme Court has held that the High Court while considering the writ application is not sitting in appeal over the detention order and it is not for the Court to go into and assess the probative value of the evidence available to the Detaining Authority. The Hon'ble Supreme Court has observed that the Detention Order which is not supported by any evidence may be quashed. The learned APP pointed out that the Court exercising the power under Article 226 of the Constitution of India is not exercising the power of Court of appeal to reappreciate the material on record and to come on a different finding. The scope of interference of this Court is only in case the Detaining Authority has passed the order of detention based on no evidence and this Court cannot go into the issue of sufficiency of material as has been held by the Supreme Court in the above judgment. Mrs. Pai further referred to another judgment of the Hon'ble Supreme Court in the case of State of Gujarat Vs. Sunil Fulchand Shah and another, AIR 1988 SC 723 wherein also the Hon'ble Supreme Court has held that it is not necessary to mention in the grounds the reaction of the Detaining Authority in relation to every piece of evidence, separately. The learned APP has contended that the Detaining Authority may set out in detail the grounds of detention on the basis of record made available to it. However, the Detaining Authority, in the said grounds of detention, need not set out the reactions to the said facts as has been held by the Hon'ble Supreme Court in the aforesaid case.â
Anna Durai and Dilli Ganpati Devendra V/s A.N. Roy, 2007(1) Bom. C.R. (Cri.) 538.
â13. In the case of (Gulab Mehra Vs. State of U.P. And Others)9, A.I.R. 1987 S.C. 2332, their Lordships stated that whether an Act relates to law and order or to public order depends upon the effect of the Act on the life of the community or in other words the reach and effect and potentiality of the Act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an Act which will affect public order. In the case of Arun Ghosh (supra), a four Judge Bench held that the public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. The disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?
In the case of Ajay Dixit (supra), the Supreme Court stated as under:-
âwhen the liberty of the citizen is put within the reach of authority and the scrutiny by Courts is barred, the action must comply not only with the substantive requirements of law but it should be with those forms which alone can indicate the substance. The learned Judges further observed that the contravention 'of law' always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. One has to imagine three concentric circles, the largest representing âlaw and orderâ, the next representing âpublic orderâ and the smallest representing âsecurity of Stateâ. An Act may affect âlaw and orderâ but not âpublic orderâ, just an an act may affect âpublic orderâ but not âsecurity of the Stateâ. Therefore, one must be careful in using these expressions.â
FirozKhan alias Aabu S/o Ajijkhan Alias Pappu Pahelwan Vs. State of Maharashtra, 2011 ALL MR (Cri) 3481.
â24. It is to be noted that in the case of Sunita Fulore [2001 ALL MR (Cri) 794] (supra) the Detaining Authority has specifically stated about his satisfaction regarding truthfulness and genuineness of the in-camera statements not in the grounds of detention but only in his affidavit. This affidavit was relied upon by the Division Bench of this Court in Sunita Fulore. Even though the subjective satisfaction of the Detention Authority was expressed only in the affidavit, it was found sufficient by the Court and the Court negative the contention that the detention order would be vitiated as no satisfaction was expressed in the detention order or grounds of detention. During the hearing of Janardhan [2009 ALL MR (Cri) 113] (supra) this earlier decision of the Division Bench of this Court, in the case of Sunita Fulore, wherein both the decisions in Phulwari Pathak and Vijaya Raju were considered and it was held that it is not necessary that the subjective satisfaction about the truthfulness and genuineness of the in-camera statements should be reflected in the grounds of detention itself but even if it is expressed by the Detaining Authority in his affidavit, it would be sufficient, was not pointed out by either of the parties. So also various decisions of the Supreme Court wherein it is held that even if the satisfaction of the Detaining Authority is only expressed in the affidavit and not in the grounds of detention, it would be sufficient were not pointed out, hence, they could not be considered.â
â26. The Supreme Court in the case of State of Gujarat Vs. Sunil Fulchand Shah, reported in AIR 1988 SC 723 held that it is not necessary for the Detaining Authority to mention in the grounds of detention his reaction in relation to every piece of evidence. A Division Bench of this Court in the case of Zebunnisa Vs. N.M. Singh, reported in 2001(3) Mh.L.J. 365, has observed as under:
âOnce the detaining authority is subjectively satisfied about the truthfulness of the contents of the in-camera statements the inclusion of such in-camera statements in the grounds of detention cannot be faulted. It is not necessary to express in the grounds of detention reaction to every piece of evidence placed before the Detaining Authority. Statements of witnesses had been recorded in-camera because they did not want to disclose their identity out of fear of reprisal at the hands of the detenu. The witnesses did not register cases out of fear. This itself was a good reason to consider the detenu to be a threat to maintenance of public order. After considering all aspects of the matter in their proper perspective the detaining authority had expressly stated in the affidavit that he was satisfied about the truthfulness of the said statements. Such satisfaction cannot be questioned.â
The above two decisions also were not brought to the notice of the Court during the hearing of Janardhan, hence, they were not taken into consideration.â
AdilChaus s/o. Hamad Chaus V/s The Commissioner of Police, Aurangabad, 2012 ALL MR (Cri) 1123.
â(6) Phulari Jagdambaprasad Pathak v. R.H. Mendonca, (2000)6 SCC 751. Para 16 reads thus:
â16. Then comes the crucial question whether âin-cameraâ statements of persons/ witnesses can be utilized 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 the larger interest of society. It is in the nature of a 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 necessity 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 not 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 Parliament did not make any provision in the Act in that regard and left the mater 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.â
(2) ShahidMohd Yusuf Shaikh v. Shri. M.N. Singh, 2003 ALL MR (Cri) 857. Para 24 reads thus:
â24. Having considered all the facts and circumstances and the various judgments cited hereinabove, in the instant case, the main contention of the learned Counsel for the Petitioner is that the Detaining Authority has not disclosed any cogent material to indicate as to how the detenu was likely to be released on bail in the near future. With regard to above, as pointed out hereinabove, in the grounds of detention, the Detaining Authority has set out the factual aspect as well as the statements recorded with regard to the incident which took place on 15.11.2001. The said narration of the facts very clearly indicate that though the petitioner has been charged with the offence punishable under Section 302 IPC, the sequence of events clearly indicates that the detenu as well as his associates had intended only to rob the taxi driver. It appears that when the taxi driver got down from the taxi and caught hold of the detenu the detenu had inflicted wound on the neck of the taxi driver and thereafter he and his associates started running. All these facts have been taken into account by the Detaining Authority and prima-facie the Detaining Authority seems to have come to the conclusion based on the above sequence of events that the charges under Section 302 IPC may not be sustained and hence the Detaining Authority has observed that there was every likelihood of the petitioner being released on bail in the near future. Even otherwise, even if the accused is charged under Section 302 IPC, it is not that such an accused would never get bail. There is always every likelihood of such person being released on bail. The Detaining Authority was very much aware of the same, and accordingly, had clearly mentioned as to how the petitioner who was in custody was likely to be released on bail in the near future and would indulge in the prejudicial activities which would be against the public order. In the instant case, there are three cases filed against the detenu. Over and above, there are two in-camera statements and the modus operandi appears to be that the petitioner and his associates armed with knives had been extorting money and committing robbery from the taxi drivers and the traders in the particular area thereby creating a situation of terror and fear in such locality and thereby endangering the public order. As has been observed by the Honble Supreme Court in the above judgments, it is not for this Court to sit in judgment over the sufficiency of material produced before the Detaining Authority as to whether the detenu was likely to be released or not.â
(3) Magars/o Pansingh Pimple v. State of Maharashtra, Criminal Writ Petition No.268 of 2005 decided on 27 July 2005. Para 10 reads thus:
â10. By relying upon some judicial pronouncements of the Supreme Court, learned APP has tried to strike at the foundation of the writ petition. We may say that the cases were relied upon to apprise us of the scope of a writ petition challenging the detention order passed in exercise of powers conferred by a special statute and according to learned APP, since the detention order is required to be passed on the basis of subjective satisfaction of the detaining authority, High Court in its jurisdiction under Article 226 of the Constitution of India cannot assume the role of appellate Court nor it can intervene with the detention order lightly.
BhimSen V/s State of Punjab (1952 Criminal Law Journal, 75) was a decision of the Supreme Court of a Bench consisting of 3 Honble Judges. No doubt, the decision was not one under MPDA Act. It was a matter of Preventive Detention Act, 1950 and Section 3 of the said Act also spoke about âsubjective satisfaction of detaining authorityâ. The Supreme Court was dealing with 5 companion appeals from the judgments of High Court of East Punjab. The appellants therein had suffered the detention order issued by District Magistrate of Jullundur on 19-6-1951. The Supreme Court observed, thus, in para 7 of the judgment:
âThe Legislature has made only the subjective satisfaction of the authority making the order essential for passing the order. The contention that because in the Amending Act of 1951 an Advisory Board is constituted, which can supervise and override the decision taken by the executive authority, and therefore, the question whether the grounds are sufficient to give rise to the satisfaction has become a justiciable issue in Court, is clearly unsound. The satisfaction for making the initial order is and has always been under the Preventive Detention Act, that of the authority making the order. Because the Amending Act of 1951 establishes a supervisory authority, that discretion and subjective test is not taken away and by the establishment of the Advisory Board, in our opinion, the Court is not given the jurisdiction to decide whether the subjective decision of the authority making the order was right or not. Proceeding on the footing, therefore, that the jurisdiction to decide whether the appellants should be detained under the Preventive Detention Act on the grounds conveyed to the appellants is of the District Magistrate. ....â
(4) FirozKhan v. State of Maharashtra, 2011 ALL MR (Cri) 3481. Para 10 of the judgment reads thus:
â10. The next ground raised is ground No.XVII. Ground XVII of the petition relates to in-camera statements. It reads as under:
âThe Asst. Commissioner of Police, Sakkardara Zone, has failed to record proper verification under the statements verifying the truthfulness of the contents and has also failed to record his satisfaction as per the law. The Asst. Commissioner of Police while verifying the statements ought to have recorded his satisfaction about the truthfulness and genuineness of the so called in-camera statements of witness âAâ and âBâ. The statements if perused would show that the name of the complainant, date and time of the alleged incident are deliberately kept blank in the copies supplied to the petitioner. A statement without the above details has resulted in adversely affecting the petitioners right to make effective representation. The Asst. Commissioner of Police has failed to record his satisfaction about the truthfulness and genuineness of the contents of the said statements as well as the incident.â
Ground No.XVII is in two parts. First two sentences and the last sentence deal with the Assistant Commissioner of Police, failing to record proper verification under the in-camera statements verifying the truthfulness and genuineness of the contents as well as the incident and also failing to record his satisfaction as per law. It is contended that the Assistant Commissioner of Police while verifying the statements ought to have recorded his satisfaction about the truthfulness and genuineness of the in-camera statements of witness A and B. As far as this contention is concerned, the endorsement of the Assistant Commissioner of Police below both the in camera statements shows that he has indeed recorded proper verification after verifying the truthfulness and genuineness of the contents of both the in-camera statements as well as the incidents stated therein. We find no error in the verification recorded by the Assistant Commissioner of Police about truthfulness and genuineness of the contents of the in-camera statements as well as the incident narrated by witness A and B. The verification recorded by the Assistant Commissioner of Police below the in-camera statements clearly shows that he is satisfied about the truthfulness and genuineness of the contents of the statements as well as the incident. This verification itself reveals his satisfaction and there is no need for him to record his satisfaction on this aspect separately. The verification by the Assistant Commissioner of Police, copy of which has been furnished to the detenu shows that not only he verified that the statements were properly recorded but the enquiry made by him showed that incidents stated in the in-camera statements were true and genuine. Thus we find no substance in this ground.â
19) We have perused the original record placed before us and the paper book; the grounds raised by the petitioner and the reply filed by the respondent No.2. The learned counsel for the petitioner submitted that the relevant material in respect of cases referred in the detention order right from 2004 were not produced by the sponsoring authority before the detaining authority. Therefore the detention order gets vitiated. In the facts of the case and the material brought on record we find that the detaining authority had referred to the cases lodged against the petitioner from the year 2004 onwards as preamble to the order of detention. In the facts of the case the same would not vitiate the detention order. The detaining authority has given satisfactory explanation in this regard. The detaining authority had derived its subjective satisfaction from two in-camera statements recorded and the proceedings of Crime No.3/2012 against the petitioner. In respect of the said crime copies of charge-sheet and bail order were produced by the sponsoring authority before the detaining authority. In the facts of the present case and the record placed before the detaining authority, we are of the view that the reference to the earlier cases lodged against the petitioner was by way of preamble and did not form ground for satisfaction of the authority concerned.
20) The second objection raised was in respect of in-camera statements recorded by the enquiry officer. We have noticed from the record that after enquiry officer was satisfied that there was fear in the mind of general public to come forward openly and make statement against the petitioner, on assurance given by the police, witnesses came forward and made statements before police. They have given detail account of the activities of the petitioner. Witness âAâ, whose statement was recorded on 1-8-2012 stated that on a holiday the witness along with family members was proceeding on his TVS Suzuki vehicle towards Sindhi Colony Road for taking darshanin Ramdeo Baba Mandir. At that time the petitioner along with his two associates came in a vehicle and made the witness to stop. The petitioner hurled abuses against the witness. The witness fell down from his vehicle. The petitioner came out of his vehicle manhandled the witness and snatched gold chain. The family member of the witness was horrified to see this incident. The wife of the witness prayed for mercy with folded hands before the petitioner. The petitioner along with his associates had damaged the vehicle of the witness. Family members of the witness started crying. The witness was threatened by the petitioner. Due to fear and the petitioner's activities the witness did not get any courage to go to the police station and lodge complaint. But on assurance of police that the witness would not be called in Court or police station he had made the statement. The statement was recorded by Police Inspector of Local Crime Branch. The sponsoring authority had placed its satisfaction under caption verification on 13-8-2012. Even the detaining authority has put up endorsement.
21) We have perused the in-camera statement of witness âBâ dated 4-8-2012.The said witness had given a detail account of the incident of 25-7-2012 at 7.30 pm. The petitioner threatened the witness. He demanded Haptafrom the witness. The witness was assaulted by the petitioner and his associates. During scuffle, an amount of Rs.860/- of the witness was snatched by the petitioner. The other persons gathered around did not have courage to interfere as they were threatened by the petitioner. The petitioner had come in a vehicle and by laughing loudly they left the spot. The witness stated that the people in the area are under lot of fear of the petitioner and nobody dares to file complaint or make statement against the petitioner. The petitioner extracted money from the people in the area. The associates of the petitioner misbehaved with the people under influence of liquor. Birthday of the petitioner was celebrated in midnight and the petitioner cut the birthday cake with sword. The sponsoring authority had verified the statement and made endorsement in respect of its truthfulness and genuineness to the effect of his satisfaction.
22) It was submitted by the learned counsel for the petitioner that the sponsoring authoritys satisfaction in respect of the incident, its genuineness, truthfulness and genuineness of the statement is lacking. After considering the endorsements made by the sponsoring authority and the affidavit-in-reply filed we are of the view that the sponsoring authority was satisfied in respect of the truthfulness of the incident narrated by the witnesses and the fear expressed by them. After verifying the same he had put necessary endorsement.
23) Law is settled that if in-camera statement discloses verification about truthfulness of such statement and the identity of the person concerned to the satisfaction of the officer verifying the statement, no challenge could be entertained on the ground that the verification was defective.
24) The learned counsel further raised third ground that there was no live link between the statements, the fear expressed by the witnesses, the crime registered and the detention order. From the material placed on record we find that there is material against the petitioner in the form of record of criminal cases and the confidential statements of the witnesses, based on which the detaining authority recorded its satisfaction to detain the petitioner. Therefore this ground does not survive.
25) The fourth ground was raised in respect of English translation of the detention order and other documents being defective. It is not the case of the petitioner that the petitioner is not aware of Marathi language. Even if there are some typographical error occurring in the translation they are not material so as to raise an issue. On this ground the detention order does not get vitiated.
26) The fifth ground raised by the petitioner is regarding delay in passing the detention order. Crime No. 3/2012 was registered on 17-1-2012, the in-camera statements were recorded on 1-8-2012 and 4-8-2012. Considering this fact and the time taken by the sponsoring authority and the detaining authority to pass final order we are of the view that the detention order is not vitiated at all. There is no delay in passing the detention order.
27) The law in respect of the grounds to challenge the order of detention is well settled by now. The courts have only to see whether the procedural requirements enjoined by Article 22(5) of the Constitution of India have been complied with by the detaining authority. In case, the procedural compliance is exhibited from record and the order passed by the detaining authority, the courts cannot examine the materials placed before the detaining authority and find out as to whether the detaining authority should have been satisfied on the material placed before it and detain a person.
28) It is settled position in law that the mandate of Article 22(5) has to be complied with in meaningful manner. In the facts of the present case the petitioner was provided with opportunity to make representation on the basis of the material supplied to him. On reading the in-camera statements the detaining authority was satisfied after going through the record which apparently disclosed that the activities of the petitioner are disturbing the public order. The people at large are under fear and reluctant to come forward to lodge complaint against the petitioner. The detaining authority was subjectively satisfied that a case is made out to detain the petitioner.
29) For the reasons stated above, we are of the view that the objections raised to the detention order are not convincing. There is no merit in the petition. It is dismissed. Rule discharged.