- Bookmark
- Share
- CaseIQ
Lahu Shrirang Gatkal v. State Of Maharashtra
Case Summary: Writ Petition challenging detention under the M.P.D.A. Act
Factual and Procedural Background
The petitioner challenged a detention order dated 10.10.2016 passed by respondent no. 3 (Commissioner of Police, Aurangabad) under sub-section (1), Section 3 of 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 (M.P.D.A. Act). He also challenged respondent no. 1's approval dated 17.10.2016 of that order and the final confirmation dated 28.11.2016 under sub-section (1) of Section 12 of the M.P.D.A. Act directing detention for one year from the date of detention. The petitioner advanced three primary grounds of challenge (non-communication of grounds within five days, insufficiency of material and non-application of mind, and omission of the period of detention). The matter was heard finally by consent of the parties and the writ petition was ultimately dismissed and the rule discharged.
Legal Issues Presented
- Whether the detaining authority complied with sub-section (1), Section 8 of the M.P.D.A. Act by communicating the grounds of detention to the petitioner within five days and affording opportunity to make representation.
- Whether there was sufficient material and application of mind by respondent no. 3 to justify preventive detention under sub-section (1), Section 3 of the M.P.D.A. Act.
- Whether the omission to mention the period of detention in the detention order dated 10.10.2016 vitiates the order.
Arguments of the Parties
Petitioner's Arguments
- The grounds of detention were not communicated to the petitioner within five days from the date of detention as required by sub-section (1), Section 8 of the M.P.D.A. Act; the order of detention was served on 15.10.2016, so the petitioner was denied the right to make representation.
- There was insufficient material to detain the petitioner and respondent no. 3 did not apply his mind properly when passing the detention order; several criminal cases either resulted in acquittal or were quashed, indicating absence of antecedents or false cases.
- The detention order did not specify the period of detention and is therefore liable to be quashed.
- The petitioner alleged victimisation, contending that he had given statements against some Assistant Commissioners of Police and was targeted as a result (the Court noted this was not raised in the petitioner's representation and treated it as an afterthought).
Respondent's Arguments (A.P.P.)
- The detention order dated 10.10.2016 was served on the petitioner the same day, and the reasons and copies of documents were served on 14.10.2016, within five days, satisfying sub-section (1) of Section 8 of the M.P.D.A. Act; the petitioner was aware of his right to make representation.
- The petitioner, although a serving Police Constable, was allegedly engaged in criminal activities (illegal excavation/transportation of sand) and created fear in those who could have deposed against him; some acquittals resulted from witnesses not deposing due to fear and intimidation.
- The detaining authority considered criminal antecedents, in-camera witness statements, informants' allegations and reports, and after applying his mind properly, legitimately passed the detention order under sub-section (1), Section 3.
- Omission to state period in the detention order is not fatal; the final order dated 28.11.2016 specifies detention for one year from 10.10.2016, and statutory maximum period is 12 months given the amendment to Section 13.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sunil S/o Sadashiv Ghate v. The State of Maharashtra, 2000 (4) Mh.L.J 386 | Failure by the detaining authority to inform the detenu of his right to make a representation against the detention order would vitiate the order. | The petitioner relied on this authority to challenge non-communication of grounds. The Court examined the record and found that the reasons and documents were served within five days, and thus Sunil Ghate did not assist the petitioner because statutory compliance was established. |
| Magarpansingh Pimple v. State of Maharashtra, 2006 (1) BCR (CRI) 88 | Detention based on the subjective satisfaction of the detaining officer, formed on available material, is not ordinarily open to interference in writ jurisdiction. | The A.P.P. relied on this authority to support the proposition that the detaining officer's subjective satisfaction, if properly formed, should not be interfered with; the Court accepted that detaining officer applied mind to the material. |
| Adil Chaus S/o Hamad Chaus v. The Commissioner of Police, Aurangabad, 2012 All M.R (Cri.) 1123 | Similar principle — the order of detention based on subjective satisfaction of the detaining officer cannot be interfered with in writ jurisdiction. | Relied upon by the A.P.P. in support of the correctness of the detention order; the Court considered this alignment with the present facts in upholding the detention. |
| Abdul Sathar Ibrahim Manik : Ibrahim Shareef M. Madhafushi v. Union of India, (1992) 1 SCC 1 | Detention cannot be invalidated merely on the ground that there were no antecedents; the detaining authority's satisfaction based on material (even a solitary incident) may justify detention. | The A.P.P. cited this apex court authority to counter the petitioner's reliance on acquittals/absence of antecedents; the Court accepted that lack of antecedents is not decisive where material supports detention. |
| Amar alias Amarsingh Gulabsingh Rathod v. State of Maharashtra, 2003 All M.R (Cri.) 1671 | The order of detention is not vitiated merely because the detaining authority failed to specify the period of detention in the detention order. | The A.P.P. relied on this decision; the Court applied the principle and additionally noted that the final confirmation order expressly fixed detention for one year, removing any possible defect. |
Court's Reasoning and Analysis
The Court conducted a document-centric review and proceeded in the following steps:
- Verification of service and communication under Section 8: The Court examined the original proceedings record and found that the detention order was received and signed by the petitioner on 10.10.2016; the petitioner’s statement that intimation should be given to his brother and that reasons be provided in Marathi was recorded the same day. A notice to the brother was handed but refused, with a panchnama documenting refusal. A formal letter dated 14.10.2016 from respondent no. 3 requested the Superintendent, Central Prison, Aurangabad to serve the note containing reasons and other documents, which was done on 14.10.2016. The petitioner signed receipt of documents (Sr. Nos. 1 to 263) that day. On this basis, the Court held the petitioner’s bare assertion that grounds were not communicated within five days could not be believed and concluded respondent no. 3 complied with sub-section (1), Section 8 of the M.P.D.A. Act.
- Consideration of alleged insufficiency of material and application of mind: The Court reviewed the criminal antecedents relied upon in the grounds of detention. While some cases resulted in acquittal or quashing (Sessions Case judgments and a writ order quashing Crime No. 99 of 2016), the Court observed that these outcomes could reflect witnesses' reluctance to depose against the petitioner because of fear or pressure. The Court referred to in-camera statements of two witnesses describing high-handed conduct by the petitioner and noted that it is common for victims to suffer in silence. From the pattern of proceedings and these in-camera statements, the Court inferred that either witnesses were won over or pressurised, and concluded respondent no. 3 had sufficient material and had applied his mind before passing the detention order under sub-section (1), Section 3 of the M.P.D.A. Act.
- On the allegation of victimisation for having given statements against senior police officers: The Court found no support in the petitioner’s own representation for this contention and treated it as an afterthought, rejecting it as a meaningful ground for quashing the detention.
- On omission of period in the detention order: The Court noted precedent (Amar Rathod) that omission to specify the detention period in the detention order is not fatal. Moreover, the final order dated 28.11.2016 (respondent no. 1) expressly stated detention for one year from 10.10.2016, curing any alleged omission.
- On statutory maximum detention period: The Court addressed the petitioner's submission that Section 13 allowed only six months' detention, and explained that the statute had been amended (Maharashtra Act No. 24 of 1988) to substitute “12 months” for “6 months”; therefore, the maximum period available was 12 months and the one-year confirmation complied with statutory limits.
- Disposition: Having found statutory compliance with Section 8, sufficient material and application of mind by the detaining authority, and no fatal defect arising from omission of period (cured by the confirmation order), the Court concluded there was no substance in the writ petition and dismissed it, discharging the rule.
Holding and Implications
Holding: The writ petition is dismissed and the rule is discharged; the impugned detention order dated 10.10.2016, the approval dated 17.10.2016 and the confirmation dated 28.11.2016 require no interference.
Implications: The direct effect is that the petitioner’s detention (confirmed for one year from 10.10.2016) is upheld and will continue to stand. The Court found statutory requirements (communication of grounds under Section 8 and the statutory maximum detention period under Section 13 as amended) satisfied and concluded the detaining authority had applied its mind based on available material including in-camera statements. The opinion does not purport to lay down a new legal precedent; it applies existing authorities to the facts and upholds the detention order in the circumstances of this case.
Sangitrao S. Patil, J.:— Rule, returnable forthwith. With the consent of the learned Counsel for the petitioner and the learned APP for the respondents, heard finally.
2. The petitioner has challenged the order dated 10.10.2016 passed by respondent no. 3 - Commissioner of Police, Aurangabad under subsection (1), Section 3 of 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 (“M.P.D.A Act”, for short) for detention of the petitioner under the said Act as well as the order dated 17.10.2016 passed by respondent no. 1 approving the order dated 10.10.2016 passed by respondent no. 3 and further the order dated 28.11.2016 passed by respondent no. 1 under subsection (1) of Section 12 of the M.P.D.A Act confirming the order of detention dated 10.10.2016 and directing the detention of the petitioner for a period of one year from the date of detention.
3. The learned Counsel for the petitioner mainly challenges the order of detention of the petitioner on the following grounds:—
(i) Non-communication of the grounds of order of detention to the petitioner within five days from the date of detention;
(ii) Insufficiency of material to detain the petitioner and non-application of mind by respondent no. 3 while passing the order of detention;
(iii) Non mentioning of the period of detention in the order.
4. The learned Counsel for the petitioner submits that as per sub-section (1), Section 8 of the M.P.D.A Act, when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. He submits that in the present case, the compliance of this provision had not been made by respondent no. 3 till 15.10.2016 The order of detention was served upon the petitioner on 15.10.2016 The petitioner could not make a representation to respondent no. 1 against the order of detention dated 10.10.2016 Respondent no. 3 approved the order dated 10.10.2016 on 17.10.2016 itself, whereby he was informed that his right to make representation to respondent no. 1 has been terminated. The learned Counsel submits that the petitioner has been denied a valuable right to make representation against the order of detention. Therefore, the impugned order of detention dated 10.10.2016 is liable to be vitiated. In support of this contention, he relied on the judgment in the case of Sunil S/o Sadashiv Ghate v. The State of Maharashtra, 2000 (4) Mh.L.J 386, wherein it has been held that in case the detaining authority fails to inform the detenu of his right to make a representation against the order of detention, it would vitiate the order.
5. As against this, the learned A.P.P submits that the order of detention dated 10.10.2016 was served on the petitioner on the same day and the reasons for passing that order along with the copies of the documents relied on by respondent no. 3 were served on the petitioner on 14.10.2016 i.e within five days from the date of passing the detention order. The petitioner was aware of his right to make representation against the order of detention. As such, according to the learned A.P.P, there is no breach of subsection (1) of Section 8 of the M.P.D.A Act and no prejudice has been caused to the petitioner.
6. We have perused the original record of the proceedings conducted by respondent no. 3. The record shows that the petitioner has received the order of detention on 10.10.2016 itself. The petitioner has signed in token of receipt of the said order on 10.10.2016 itself. His statement also has been recorded by respondent no. 3 on the same day, wherein he states that the intimation in respect of his detention should be given to his brother namely, Ankush Shrirang Gatkal and he should be provided with the reasons and other documents (in Marathi script) in respect of his detention. A notice was addressed to the brother of the petitioner intimating him about detention of the petitioner from 10.10.2016 onwards, however, it seems that the brother of the petitioner refused to accept that notice and accordingly, a panchnama came to be prepared to that effect by the Serving Officer, which is on record.
7. The letter dated 14.10.2016 was addressed by respondent no. 3 to the Superintendent, Central Prison, Aurangabad, requesting him to serve upon the petitioner the note containing the reasons for detention as well as other documents. The Officer of the Prison, accordingly, served the said documents upon the petitioner on 14.10.2016 itself. The petitioner has signed all the papers (Sr. Nos. 1 to 263) on 14.10.2016 itself in token of receipt thereof. With this documentary evidence, the bare words of the petitioner, that the order of detention was not served on him immediately when he was detained and the documents supporting the said detention order, were not served upon him within five days from the date of detention, cannot be believed.
8. The notice of detention of the petitioner was attempted to be served upon the brother of the petitioner, but he refused to accept the same. Therefore, it cannot be said that the intimation about detention of the petitioner was not given to his near relative.
9. Respondent no. 3 has complied with the provisions of sub-section (1), Section 8 of the M.P.D.A Act. The petitioner, thus, was afforded earliest opportunity of making representation against the order of detention passed by respondent no. 3.
10. The learned Counsel for the petitioner submits that six crimes are shown to have been registered against the petitioner as mentioned in the grounds of detention. There was a Chapter case under Section 107 of the Code of Criminal Procedure filed against the petitioner in the year 2009. He submits that out of six criminal cases, one each pertains to the years 2009, 2012, 2013 and 2014 and two pertain to the year 2016. There were two more crimes bearing nos. 9 of 2012 and 11 of 2012 on the basis of which, Sessions Case Nos. 354 of 2014 and 353 of 2014, respectively, were instituted. The petitioner has been acquitted by the Court in these cases. He then submits that the petitioner has been acquitted by the Court in the Criminal Case arising out of Crime No. 96 of 2013, while the proceedings of Crime No. 99 of 2016 came to be quashed by the Hon'ble High Court. He submits that false cases have been filed against the petitioner, however, respondent no. 3 did not apply his mind properly and passed the detention order against the petitioner without there being sufficient material to pass the same. He submits that since the petitioner has given statement against some of the Assistant Commissioners of Police, he has been victimised.
11. On the other hand, the learned A.P.P submits that the petitioner was serving as a Police Constable and was indulged in the criminal activities. He was indulged in illegal excavation and transportation of sand. He was creating terror amongst the persons, who used to come in his way of doing illegal activities. Nobody dares to speak against him. Because of the fear of the petitioner, the witnesses did not dare to depose against him before the Court. Therefore, in some cases, he has been acquitted. The learned A.P.P submits that respondent no. 3 considered the criminal antecedents of the petitioner, in-camera statements of the witnesses as well as the allegations made against him by the informants in the reports on the basis of which, criminal cases were instituted against the petitioner and after applying his mind to the facts of the cases registered against the petitioner, rightly passed the order of detention.
12. As seen from the grounds of detention of the petitioner, the following cases were registered against him, when the order of detention was passed:—
Sr. No.Police StationC.R No. and under SectionPresent status of the case1Osmanpura38/2009 u/s. 294, 509 of IPCPending Trial2Satara12/2012 u/s. 143, 353, 323, 504 of IPC, 135 of B.P ActPending Trial3Georai, Dist. Beed96/2013 u/s. 143, 147, 148, 323, 504, 506 of IPC; 3, 4, 5, 7/25 of Arms ActPending Trial4Chikalthana, Aurangabad Rural118/2014 u/s. 307, 353, 323, 504, 506 of IPCPending Trial5Chikalthana, Aurangabad Rural99/2016 u/s. 307, 323, 506, 34 of IPCUnder Investigation6Osmanpura175/2016 u/s. 307 of IPCUnder Investigation
Preventive Action
Sr. No.Police StationChapter Case number and SectionStatus1Osmanpura192/2009, u/s. 107 of Cr.P.CReleased on final bond of Rs. 5,000/-
13. In paragraph 4(i) of the petition, there is reference of Crime No. 9 of 2012 registered in Satara Police Station, Dist. Aurangabad for the offence punishable under Section 395 of Indian Penal Code (“I.P.C”, for short) and Crime No. 11 of 2012 registered in Police Station, Begumpura, for the offences punishable under Section 363, 341, 342, 353, 332 and 395 of I.P.C, which were registered against the petitioner, on the basis of which Sessions Case Nos. 354 of 2014 and 353 of 2014, respectively, were instituted against him. The petitioner has produced the judgments delivered in those cases by the learned Additional Sessions Judge, Aurangabad on 15.05.2015 The said judgments make it clear that the witnesses did not state anything adverse against the petitioner and therefore, the petitioner came to be acquitted. The petitioner has further produced the judgment dated 08.12.2016 passed in Sessions Case No. 85 of 2016 by the learned Additional Sessions Judge, Beed, arising out of Crime No. 96 of 2013, wherein also, none of the prosecution witnesses deposed against the petitioner and therefore, he came to be acquitted. The copy of the order dated 21.12.2016 passed in Writ Petition No. 1596 of 2016 by this Court has been produced by the petitioner, which shows that consequent upon amicable settlement between the petitioner and the informant, Crime No.I-99 of 2016 registered against the petitioner in Chikalthana Police Station, Aurangabad for the offences punishable under Sections 307, 323, 506 read with Section 34 of I.P.C came to be quashed and set aside. Two cases arising out of Crime No. 118 of 2014 and 175 of 2016 seem to be still pending against the petitioner.
14. The grounds mentioned in the judgments and orders, whereby the petitioner has been acquitted or the criminal proceeding has been quashed and set aside against him in Crime No. 99 of 2016, support the contention of respondent no. 3 that the witnesses do not dare to state anything against the petitioner. From this factual position, an interference can be drawn that either the prosecution witnesses were won-over or pressurised by the petitioner. It does not appear to be natural and probable that all the aggrieved persons, who lodged reports against the petitioner, would come before the Court simply to say that the reports were lodged because of some misunderstanding. In the circumstances, from the results of these cases, which are in favour of the petitioner, it cannot be said that respondent no. 3 passed the order of detention without application of mind and without sufficient evidence, with a view to victimise the petitioner.
15. The contention of the learned Counsel for the petitioner that since the petitioner gave statement against some Assistant Commissioners of Police, against whom enquiry was being held for sexual harassment of a lady Police Constable, the petitioner has been victimised. We do not find any force in this contention. The copy of the representation dated 21.10.2016 made by the petitioner is on record. There is no whisper in the said representation about victimisation of the petitioner on the above mentioned ground. This ground seems to have been taken up by way of afterthought.
16. There are in-camera statements of two witnesses who have specifically stated as to how the petitioner behaved with them high-handedly creating fear in their minds. It is common knowledge that many persons go on suffering torture of a person having muscle power instead of lodging reports to the Police Station, which sometimes may invite wrath of such a big-shot. Therefore, only because reports have not been lodged against such person, by the persons who know the language of silence only, it cannot be said that such person needs no action as has been taken against the petitioner. We have perused the record disclosing the criminal activities of the petitioner. We are satisfied that the said record is sufficient to invite action of detention of the petitioner under the provisions of sub-section (1), Section 3 of the M.P.D.A Act.
17. The learned A.P.P cited the judgments in the cases of Magarpansingh Pimple v. State of Maharashtra, 2006 (1) BCR (CRI) 88 and Adil Chaus S/o Hamad Chaus v. The Commissioner of Police, Aurangabad, 2012 All M.R(Cri.) 1123, wherein it has been held that if the detaining Officer is satisfied that with a view to preventing any person from acting in any manner prejudicial to the maintenance of public order, it is necessary to detain him he may make an order directing that such person be detained. The order of detention based on subjective satisfaction of the detaining Officer cannot be interfered with in exercise of writ jurisdiction. The learned APP further cited the judgment of the Hon'ble Apex Court in the case of Abdul Sathar Ibrahim Manik : Ibrahim Shareef M. Madhafushi v. Union of India, (1992) 1 SCC 1, wherein it has been observed that the detention cannot be invalidated on the ground that there were no antecedents. It being a question of satisfaction of the detaining authority on the basis of the material placed before him, even a solitary incident which has been detected may speak volumes about potentialities of the detenu and merely on the ground that there were no antecedents, the detention order cannot be quashed.
18. The learned Counsel for the petitioner submits that the period of detention has not been mentioned in the detention order dated 10.10.2016 and therefore, it is liable to be quashed.
19. The learned A.P.P controverts this submission by relying on the decision in the case of Amar alias Amarsingh Gulabsingh Rathod v. State of Maharashtra, 2003 All M.R(Cri.) 1671, wherein it has been held in paragraph 11, that the order of detention is not vitiated on the ground of failure on the part of the detaining authority in specifying the period of detention in the order of detention.
20. Moreover, in the final order dated 28.11.2016 passed by respondent no. 1, there is specific mention that the detention of the petitioner would be for a period of one year from the date of his detention i.e 10.10.2016 Therefore, the detention order passed by respondent no. 3 would not stand vitiated on the ground that there is no mention of specific period of detention.
21. The learned Counsel for the petitioner submits that as per Section 13 of the M.P.D.A Act, the maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 12, shall be 6 months from the date of detention. This submission cannot be accepted. Earlier, the period of detention was 6 months, however, the words “12 months” were substituted for the words “6 months” by the maharashtra act no. 24 of 1988. Thus, the maximum period would be 12 months and not 6 months.
22. Considering the above facts and circumstances of the case, we do not find any substance in the Writ Petition. The impugned order of detention as well as the orders of approval and confirmation thereof, need no interference. The Writ Petition is liable to be dismissed and accordingly, dismissed. The Rule is discharged.
Alert