Nagpur :- Division Bench presided over Vinay Joshi and Vrushali Joshi JJ have quashed and set aside order of detention dated 28-08-2023 passed by District Magistrate/Collector Wardha thereby detaining him under sec 12 (1) of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous persons and Video Pirates Act, 1981.
Sheikh Adil Sheikh Israil was detained under section 3 MPDA Act vide by District Magistrate/Collector Wardha.
Sheikh Adil Sheikh Israil was detained on the allegations that he is a dreaded criminal as a result of which people are scared to depose against him. There were 8 criminal cases registered against him and 2 persons had given in camera statement against him. It was alleged that his activities were disturbing the public order.
Adv Mir Nagman Ali appearing for Sheikh Adil Sheikh Israil submitted that, though the order was passed by considering the three offences committed before six months prior to the detention order, the detaining authority has discussed all the offences registered against the detenue. The crime was registered under Sections 4 and 25 of the Arms Act, 1959 bearing Crime No.958/2022. The detaining authority has mentioned that the petitioner was released on bail in said matter but he was acquitted in said offence by the Court of Sessions Judge on 14.09.2022. The detaining authority proceeded to pass an order of detention even relying upon the said offence without taking into consideration the fact that the petitioner stands acquitted from the said offence.
It was further submitted that, the detaining authority has not recorded his satisfaction to the effect that he has considered the in-camera statements, more particularly their truthfulness of the incidents which is a mandatory requirement of law and the satisfaction being a condition precedent to exercise power under Section 3 of the MPDA Act, 1981.
It was further submitted that, out of the three crimes relied on, one crime is NC and as regards the Crime No.243/2023 is concerned, counter crime i.e. Crime No.242/2023 is registered against the complainant party i.e. Rakesh Pande and his associates on 01.03.2023. Said information and First Information Report in Crime No.242/2023 has not been placed before the detaining authority. The registration of counter crime itself shows that there was free fight amongst two groups and there was no disturbance of public order.
While allowing the writ petition, Hon’ble Division Bench observed-
9. On perusal of record it appears that the judgment was passed in Crime No.958/2022 by the Judicial Magistrate First Class (Court No.4) in Regular Criminal Case No.597/2022. Upon perusal of the said judgment and order, it clearly emerges that the petitioner was acquitted of the offence punishable under Sections 4 and 25 of the Arms Act, 1959. Though the copy of the judgment is on record and it was supplied to the detenue, while considering the condition of detenue therein, that the acquittal of detenue in one of the case shown in the table, appended. The authority has mentioned it as pending, which shows non-application of mind of the detaining authority to the said fact has vitiated the requisite subjective satisfaction, rendering the detention order invalid
10. Coming to the second ground urged by the learned Counsel for the petitioner that the detaining authority has not recorded his satisfaction to the effect that he has considered the in-camera statements, more particularly their truthfulness of the incidents which is a mandatory requirement of law is concerned, we have perused the original record made available for our perusal and we find that the detaining authority has relied upon the report submitted by the Sub Divisional Police Officer, Wardha, on 15.08.2023. On 18.08.2023 it was signed by the authority but the name of the authority is not mentioned. From the signature it cannot be identified who has verified and signed the statements. It clearly shows that the detaining authority itself has not verified the truthfulness of the incidents stated by the witnesses in their in-camera statements.
12. Though the Sub Divisional Officer has verified the statements of the confidential witnesses, however, he is completely silent that the detaining authority has verified the in-camera statements or report of Sub Divisional Police Officer. 13. The original record shows that the note prepared by the Sub Divisional Officer does not disclose that the witnesses were not ready to depose before the Court, therefore, does not reflect the complete application of mind by the detaining authority. If the detaining authority itself fails to verify the truthfulness of the incidents stated by the witnesses in in-camera statements, the same is fatal as has been observed in the judgment passed by this Court.
14. In the light of discussion in above paragraphs as held by the Hon’ble Supreme Court in the case of Dharamdas Shamlal Agarwal Vs. Police Commissioner and Another [1989 DGLS (SC) 161], that once the requisite subjective satisfaction of the detaining authority is vitiated due to non-consideration of the acquittal order before the detaining authority, the detention order renders invalid. In our considered opinion, in the present case, for more than one reason including non-placing of the order of acquittal of detenue and also on other two grounds, the requisite subjective satisfaction of the detaining authority stands vitiated, rendering the detention order invalid.
Adv Mir Nagman Ali appeared for Sheikh Adil Sheikh Israel.
