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 Collector/District Magistrate, 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 Isreal was detained under section 3 MPDA Act vide by Collector/District Magistrate, Wardha.
Sheikh Adil Sheikh Isreal 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 9 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 Isreal 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. Therefore, the order of detention is illegal, bad in law and liable to be quashed and set aside.
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.
It will be gainful to refer to the decision of the Hon’ble Supreme Court in the case of Deepak Dattu Suryawanshi Vs. Commissioner of Police and Others [2017 All.M.R.(Cri) 416, para 12 of the same reads thus : “12. 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 nonplacing of the material fact namely the acquittal of detenu in the abovesaid 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.”
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.
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.
Adv Mir Nagman Ali appeared for Sheikh Adil Sheikh Isreal.
