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Judgment
Prakash D. Naik, J.
1.The Petitioner has invoked the writ jurisdiction of this Court under Arcitle 226 of Constitution of India and has sought issuance of writ of habeas
corpus for setting aside the order dated 6th January, 2018 issued under Section 3 of Maharashtra Prevention of Dangerous Activities of Slumlords,
bootleggers, DrugÂoffenders and Dangerous Persons, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981.
2.The order of detention under challenge was executed on the Petitioner/detenu on 9th January, 2018. The said order was issued by Respondent No.1
with a view to prevent the Petitioner from acting in any manner prejudicial to the maintenance of public order. Alongwith the order of detention, the
Petitioner was served with the grounds of detention formulated by the detaining authority on the basis of which the impugned order was issued against
the Petitioner.
3.The order of detention has been challenged on various grounds. However, the ground no. 6(b) is sufficient to set aside the impugned order. Hence,
we did not consider the other grounds raised by the Petitioner in this Petition. Ground 6(b) reads thus;
“b. The Petitioner says and submits that the detaining authority has taken into consideration two criminal cases vide C.R. No. IÂ319 of 2017 and
C.R. No. IÂ320 of 2017 registered against the Petitioner and two statements of witnesses 'A' and 'B' recorded inÂcamera for passing the order of
detention. It is pertinent to note that the incidents of these C.Rs. And statements have taken place within the jurisdiction of Kalwa Police Station,
Thane whereas while recording his satisfaction in paragraph 7 of the grounds of detention, it is mentioned that the Petitioner has unleashed a reign of
terror and have become a perpetual danger to the Society at large in the areas of Kalwa, Kapurbawadi and Naupada Police Station. Thus, the
satisfaction recorded is excessive and erroneous. The satisfaction of the detaining authority is taken into consideration extra areas of Thane while
formulating the grounds of detention and recording his subjective satisfaction. The satisfaction of the detaining authority vitiates. The order of
detention is illegal and bad in law, liable to be quashed and set aside.â€
4.Mr. Tripathi, the learned Counsel representing the Petitioner urged that the satisfaction recorded is excessive and erroneous. It is submitted that the
detaining authority has taken into consideration two Criminal Cases registered vide C.R. No. IÂ319 of 2017 and C.R. No. IÂ320 of 2017 registered
against the Petitioner and two statements of witness 'A' and 'B' recorded inÂcamera for passing the order of detention. It is submitted that incidents
which are subject matter of the aforesaid cases had allegedly occurred within the jurisdiction of Kalwa Police Station. Whereas, while recording the
satisfaction in the grounds of detention, it is stated that the Petitioner has unleashed a reign of terror and has become a perpetual danger to the Society
at large in the areas of Kalwa, Kapurbawadi and Naupada Police Station. Thus, according to the learned Counsel for the Petitioner, the detaining
authority has taken into consideration extra areas of Thane while formulating the grounds of detention and recording his subjective satisfaction,
thereby, vitiating the order of detention. The learned Counsel relied upon the decision of this Court delivered in Writ Petition No.5052 of 2015 in the
case Vijaya Ganesh Gajare Vs. Commissioner of Police dated 6th May, 2016.
Learned Additional Public Prosecutor submitted that the satisfaction recorded in paragraph 7 of the grounds of detention is not excessive and/or
erroneous. Merely, on account of making references to the two areas viz Kapurbawadi and Naupada would not vitiate the subject satisfaction of the
detaining authority. Learned Additional Public Prosecutor relied upon the explanation tendered in paragraph 10 of the affidavit in reply filed by the
detaining authority.
6.We have perused the documents on record. The order of detention was issued by Respondent No. 1 with a view to prevent the Petitioner from
acting in any manner prejudicial to the maintenance of public order. In paragraph 1 of the grounds of detention, it is mentioned that the detenu is being
communicated, the grounds mentioned in paragraph 4(a), 4(b), 5(a) and 5(b) on which the detention order has been issued by the detaining authority
against the Petitioner under Section 3(2) of the said Act. It is further stated that the copies of documents placed before the detaining authority on
which he has relied upon and formed his subjective satisfaction are enclosed, except the names and identifying particulars of witnesses/victims in
connection with the grounds as mentioned in paragraph no.5(a) and 5(b) which were not furnished to the detenu in the public interest for which he
claims privilege. In paragraph 2 of the grounds of detention, it is stated that the Petitioner is violent and terrorizing criminal character on the record of
Kalwa Police Station, Thane Commissionerate, Thane city. According to the extract of History Sheet register maintained at Kalwa Police Station and
cases cited therein, it is clear that the detenu is indulging in criminal activities since 2012 and his activities are prejudicial to the maintenance of public
order in the localities of Kalwa, Kapurbawadi and Naupada Police Stations. The said paragraph makes reference to the cases registered against the
Petitioner at Kalwa Police Station in the year 2012, 2014 and 2016. Reference is also made to two cases registered with the same Police Station vide
C.R. No.IÂ319 of 2017 and IÂ320 of 2017. This two cases are referred to in ground no.4(a) and 4(b) of the grounds of detention, which according to
the detaining authority were relied upon while issuing the order of detention. The reference is also made to one case registered with Kapurbawadi
Police Station in the year 2015 and Naupada Police Station in the year 2017 vide C.R. No.IÂ87 of 2015 and IÂ97 of 2017.
7.In paragraph 4 of the grounds of detention, it is stated that the Petitioners criminal activities are noticed in the incidents referred to in the said
paragraph, which shows continuance of his tendency and inclination towards committing crime, showing no respect to the existing law of the land.
Paragraph 4(a) refers to C.R.No.IÂ319 of 2017 registered with Kalwa Police Station under Sections 392, 452, 504, 506(2), 34 of I.P.C. read with
Sections 37(1), 135 of Maharashtra Police Act. The incident in both the aforesaid cases had allegedly occurred on 27th September, 2017. Both the
cases are pending in the Court. Paragraph 5 of the grounds of detention refers to the statements of witness 'A' and witness 'B' which were recorded
inÂcamera as the victims were afraid and were not willing to come forward to depose against the Petitioner openly. The said statements were
purportedly recorded on 28th October, 2017 and 25th October, 2017. In the light of the assertion in paragraph 1 of the grounds of detention the order
of detention is based on the two cases referred to hereinabove in paragraph 4(a) and 4(b) reflected in paragraph 5 of the grounds of detention. The
alleged activities in connection with the said cases and the inÂcamera statements had purportedly occurred within the jurisdiction of Kalwa Police
Station and the areas such as Kapurbawadi and Naupada were not involved in any of the alleged activities on which the order of detention is issued.
In paragraph 6, it is stated that from the instances quoted in paragraph No. 4(a), 4(b), 5(a) and 5(b) of the grounds of detention, it is seen that the
Petitioner is a habitual and dangerous criminal involved in serious crimes. His dangerous and criminal activities are threatening to public life and
property. To contain his criminal activities, preventive actions were taken against him. However, his criminal activities are showing an ascending trend
and are prejudicial to maintenance of public order. The averments in this paragraph also fortify the fact that the order is based on the incidents
reflected in para 4(a), 4(b), 5(a) and 5(b) of the grounds of detention.
8.In paragraph no.7 of grounds of detention, however, it is stated as follows;
“7. From the above facts, I am subjectively satisfied that you are a “dangerous person†as defined in Section 2 (bÂ1) of the said Act. You
have unleashed a reign of terror and have become a perpetual danger to the society at large in the area of Kalwa, Kapurbawadi and Naupada Police
Stations. The people are experiencing a sense of insecurity and are living under shadow of constant fear, whereby even dayÂtoÂday business and
activities of citizens are under threat. You show no respect to law of the land and to the citizens of the society where you live. You are perpetually an
impulsive violent man who wants to spread terror in the society by your violent criminal activities, in connivance with your other criminal associates.
Thus, the subjective satisfaction recorded by the detaining authority shows that, the Petitioner is a dangerous person as defined under the said Act and
that he has unleashed the reign of terror and has become perpetual danger to the Society at large in the area of Kalwa, Kapurbawadi and Naupada
Police Station. The detaining authority has therefore, referred to the area of Kapurbawadi and Naupada Police Station which was beyond the
incidents reflected in paragraph 4 and 5 of the grounds of detention. In the light of introductory paragraph of the grounds of detention, which states
that the detenu is being communicated the grounds as mentioned in paragraph 4(a), 4(b), 5(a) and 5(b) on which the detention order has been issued
by the detaining authority under the provisions of the said act, it is apparent that the detaining authority while recording the subjective satisfaction has
taken into consideration extra areas. There is total non application of mind on the part of detaining authority. The satisfaction recorded is therefore
excessive and erroneous which vitiates the same and the order of detention.
9.The affidavit in reply filed by the detaining authority states that, the satisfaction in paragraph 7 of the grounds of detention has been rightly recorded
by the detaining authority. It would be relevant to quote paragraph 10 of the affidavit in reply dealing with the submissions advanced by the Petitioner
which reads as follows.
“10. With reference to ground 6(b) of the petition, it is denied that the satisfaction recorded in para 7 of the grounds of detention is excessive and
erroneous as it is mentioned in said para that the petitioner has unleashed a reign of terror and have become perpetual danger to the society at large in
the area of Kalwa, Kapurbawadi and Naupada Police Station.
It is submitted that I being Detaining Authority has rightly recorded the satisfaction in para 7 of the grounds of detention as the detenu has created
reign of terror due to his prejudicial activities, in the area of Kalwa as well as Naupada and Kapurbawadi areas which are nearby and adjoining to the
jurisdictional areas of Kalwa Police Station.â€
Thus, the detaining authority has affirmed the satisfaction in para 7 of the grounds of detention by stating that the detenu has created reign of terror
due to his prejudicial activities in the area of Kalwa as well as Naupada and Kapurbawadi areas which are nearby and adjoining to the jurisdictional
areas of Kalwa Police Station. In exercise of powers of preventive detention the detenu is subjected to detention and deprived of his liberty without
being tried for any offence and all the more it is expected that there is application of mind on the part of the detaining authority while issuing the order
of detention. The contents of paragraph 7 of grounds of detention, and the reply filed by the detaining authority are contrary to averments in paragraph
1 of the grounds of detention.
In the case of Vijaya Gajare (Supra) similar ground was agitated before this Court while challenging the order of detention. In the grounds of
detention which was the subject matter of the said Petition also the detaining authority has recorded his subjective satisfaction alleging that the detenu
has unleashed reign of terror and has become perpetual danger to the Society at large in areas of Kondhawa, Wanawadi and Hadapsar Police
Stations, Pune city. Whereas, the incidents referred to in the grounds of detention, on the basis of which the order of detention was issued occurred
within the jurisdiction of Hadapsar Police Station of Pune city. This Court therefore observed that the grounds on which the subjective satisfaction is
based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must
be relevant to the subject matter of the inquiry and from the facts a legitimate inference can fairly be drawn that the authority had not applied its mind
to the relevant facts. Where the liberty of a subject is involved and he has been detained without trial, and a law made pursuant to Article 22 which
provides certain safeguards, it is the duty of the Court as the custodian and sentinel on the ever vigilant guard of the freedom of individual to scrutinize
with due care and anxiety that this precious right, which the detenu has under the Constitution is not in any way taken away capriciously, arbitrarily or
without any legal justification. It would be pertinent to note that in the present case in paragraph 2 there is a reference to C.R. No.IÂ97 of 2007
registered with Naupada Police Station and C.R. No.IÂ87 of 2015 registered with Kapurbawadi Police Station. However, the detaining authority has
categorically averred that the grounds on which the order of detention is issued are reflected in paragraph Nos. 4(a), 4(b), 5(a) and 5(b). In these
circumstances, there was no occasion for the detaining authority to arrive at the subjective satisfaction by including the activities allegedly occurred
within the jurisdiction of Kapurbawadi and Naupada Police Station which reflects total non application of mind. The order of detention was issued with
a view to prevent the detenu from acting prejudicially to the maintenance of public order. This subjective satisfaction of the detaining authority refers
to extraneous material which is contrary to the assertions made in the grounds of detention that the order is based on the incidents which had occurred
within the jurisdiction of Kalwa Police Station. In view of the above, the order of detention is required to be set aside.
Hence, we pass the following order.
ORDER
Criminal Writ Petition No. 736 of 2018 is allowed.
The impugned order of detention bearing No. TC/PD/MPDA/01/2018 dated 6th January, 2018 passed by Respondent No. 1 be quashed and set
aside and the detenu be released forthwith, if not required in any other case. Rule is made absolute accordingly.