Detention; Harish Patil Vs. State of Maharashtra [Bombay High Court, 10-10-2016]

Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black Marketing of Essential Commodities Act, 1981 (Maharashtra) – detenu is a sand smuggler – On account of sand smuggling, the water available is reduced. The ecological balance is disturbed. On account of reduction in water, there is great scarcity of water for drinking purposes and for irrigation. There is monetary loss to farmers and other citizens in the area. People in the area know about the activities of the detenu and are living in a state of fear. All this amounts to disturbance of public order. Hence to protect the interest of the public in such cases, the legislation has amended the definition and incorporated ‘Sand Smugglers’ in section 2 of the Act. The Detaining Authority has rightly considered the situation, the nature of offences and the nature of its effect on public order and has passed the order.

Detenu

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM: SMT. V.K. TAHILRAMANI & MRS.MRIDULA BHATKAR, JJ.

PRONOUNCED ON: OCTOBER 10, 2016

CRIMINAL WRIT PETITION NO.1398 OF 2016

Harish Patil … Petitioner Vs. The State of Maharashtra & Ors. … Respondents

Mrs.Aisha M. Zubair Ansari for the Petitioner; Mrs.M.H. Mhatre, APP, for Respondent – State

JUDGMENT

(PER SMT. V.K. TAHILRAMANI, J.)

1. By means of this writ petition filed by the friend of the detenu, the detention order passed by respondent No.2 District Magistrate, Jalgaon, under

The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers and persons engaged in Black Marketing of Essential Commodities Act, 1981

is being challenged.

Respondent No.2 by the detention order dated 16.3.2016 ordered the detention of the detenu Nilesh Dnyaneshwar Desale to prevent him from acting in any manner prejudicial to the maintainance of public order.

2. From the grounds of detention furnished to the detenu, it is apparent that the detention order is based on 4 C.Rs and two in-camera statements. The 4 CRs are C.R. Nos.166 of 2010, 134 of 2015, 135 of 2015 and 21 of 2016. All the 4 CRs are of Bhadgaon police station in Jalgaon. C.R. No.166 of 2010 is under sections 353, 379, 504, 506 r/w section 34 of the Indian Penal Code. C.R. No.134 of 2015 is under sections 395, 325, 326, 323, 143, 147, 148, 149, 448, 504 and 506 of the Indian Penal Code. C.R. No.135 of 2015 is under section 379 r/w section 34 of the Indian Penal Code and C.R. No.21 of 2016 is under sections 379, 420 and 109 of the Indian Penal Code. All 4 CRs pertain to theft of sand. The incidents relating to the two in-camera witnesses relate to threat and assault in relation to theft of sand by the detenu. Hence, the detenu has been detained as he is a Sand Smuggler and his activities are prejudicial to public order as envisaged under section 2 (a) subsection (iv-a) of the Act. Sub-section (iv-a) of section 2 (a) reads as under:

“(iv-a) in the case of a sand smuggler, when he is engaged, or is making preparations for engaging, in any of his activities as a sand smuggler, which affect adversely, or are likely to affect adversely, the maintenance of public order;”

3. The first ground raised by the learned Counsel for the petitioner is in ground 4(i). In short, in relation to this ground, it is contended that the detention order is issued on 16.3.2016 whereas on the same day, i.e.,on 16.3.2016 at 1.20pm and 1.25pm, the Detaining Authority has put endorsement about the truthfulness of the in-camera statements. This means that the detention order and the grounds of detention were prepared thereafter and detention order and grounds of detention alongwith accompanying documents were served on the detenu on 16.3.2016 at about 9.10pm. Hence, it is submitted that there was not sufficient time for the Detaining Authority to properly apply its mind to the facts of this case and to issue the order of detention. It is further submitted that the time period is so short that on account of paucity of time, there could not have been proper application of mind by the Detaining Authority, hence, on the ground of non-application of mind, the detention order is vitiated.

4. In addition, on going through the affidavit filed by the Detaining Authority, Mrs.Ansari submitted that the affidavit clearly shows that the proposal is dated 15.3.2016. The set of documents which was served on the detenu consists of 11 documents running into 187 pages. Hence, in such a short time, it was not possible for the Detaining Authority to properly apply its mind and to issue an order of detention.

5. Mrs.Ansari has relied on two decisions wherein she stated that in similar circumstances on account of paucity of time on the ground of non-application of mind the detention order was quashed. The first decision is dated 20.12.1985 of the Supreme Court in the case of

Shri Umesh Chandra Verma vs. Union of India and anr;

In the said case, the detenu was intercepted on the morning of 12.6.1985 and a large quantity of contraband gold was recovered from him. He was interrogated the entire day on 13.6.1985. Thereafter at 6pm, he was formally arrested. The same night, the detention order was issued against the detenu. Mrs.Ansari pointed out that in the said case the order of detention and the documents ran into about 234 pages and the documents included the arrest memo which was prepared at 6pm on 13.6.1985. This arrest memo which was prepared at 6pm, was relied upon by the Detaining Authority which indicated that the arrest memo was placed before the Detaining Authority some time after 6pm. It was submitted in the said case that if the last document was generated at 6pm, it would certainly be difficult, if not impossible, for the Detaining Authority to issue order of detention the same night. Looking to the facts of the case, the Supreme Court held that the Detaining Authority could not have possibly applied its mind to the voluminous documentary evidence which was placed before him and for that reason alone, the order of detention was quashed.

6. The second decision on the above point relied upon by Mrs.Ansari is of the Division Bench of this Court in the case of