Case Note & Summary
The petitioner, Sanjay s/o Ramuji Phatode, was detained under Section 3(2) 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 (MPDA Act) by an order dated 16.03.2021 passed by the Commissioner of Police, Nagpur. The detention was based on three criminal cases (including C.R. No. 351 of 2020) and two in-camera statements of witnesses 'A' and 'B' recorded on 12.02.2021 and 13.02.2021. The petitioner made a representation on 22.06.2021 which was rejected on 08.04.2021. The petitioner challenged the detention order on several grounds, including that in C.R. No. 351 of 2020 he was not present at the spot, that he had been granted bail in all three cases, and that the in-camera statements contained seven blanks each, while the grounds of detention contained details not found in those statements. The court found that the blanks in the statements and the variance between the statements and the grounds of detention indicated non-application of mind by the detaining authority and violated the petitioner's right to make an effective representation under Article 22(5) of the Constitution. The court also noted that the detaining authority relied on a crime where the petitioner was not present and that the petitioner had been granted bail, further showing non-application of mind. Consequently, the court quashed the detention order and directed the petitioner's release.
Headnote
A) Preventive Detention - MPDA Act - In-Camera Statements - Blanks and Variance - The detention order under Section 3(2) of the MPDA Act was challenged on the ground that the in-camera statements of witnesses 'A' and 'B' contained several blanks, and the grounds of detention contained details not found in those statements, indicating non-application of mind and violation of the right to make an effective representation under Article 22(5) of the Constitution. The Court held that such blanks and variance render the detention order unsustainable as the detenu cannot make an effective representation. (Paras 4-6)
B) Preventive Detention - MPDA Act - Non-Application of Mind - The detaining authority relied on a crime where the petitioner was not present, and the petitioner had been granted bail in all three relied-upon cases. The Court held that this shows non-application of mind and the detention order is liable to be quashed. (Paras 3-6)
Issue of Consideration
Whether the detention order under Section 3(2) 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 (MPDA Act) is vitiated due to blanks in in-camera statements and variance between those statements and the grounds of detention, thereby infringing the detenu's right to make an effective representation under Article 22(5) of the Constitution.
Final Decision
The court allowed the petition, quashed the detention order dated 16.03.2021, and directed the respondents to release the petitioner forthwith unless required in any other case.
Law Points
- Preventive detention
- MPDA Act
- in-camera statements
- blanks in statements
- non-application of mind
- right to make effective representation
- Article 22(5) of Constitution
Case Details
2021 LawText (BOM) (08) 53
Criminal Writ Petition No. 2335 of 2021
S. S. Shinde, N. J. Jamadar
Ms. Jayshree Tripathi for Petitioner, Mr. J.P. Yagnik, APP for State
Sanjay s/o Ramuji Phatode
The Commissioner of Police, Nagpur City; The State of Maharashtra; The Superintendent, Yerwada Central Prison, Pune
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Nature of Litigation
Writ petition challenging the legality and constitutional validity of a preventive detention order under the MPDA Act.
Remedy Sought
Quashing of the detention order and release of the petitioner from detention.
Filing Reason
The petitioner alleged that the detention order was based on material irregularities, including blanks in in-camera statements and non-application of mind by the detaining authority.
Previous Decisions
The detention order was passed on 16.03.2021; the petitioner's representation was rejected on 08.04.2021; the advisory board interviewed the petitioner via virtual conference.
Issues
Whether the detention order under Section 3(2) of the MPDA Act is vitiated due to blanks in the in-camera statements of witnesses 'A' and 'B'?
Whether the variance between the in-camera statements and the grounds of detention violates the detenu's right to make an effective representation under Article 22(5) of the Constitution?
Whether the detaining authority applied its mind properly in passing the detention order?
Submissions/Arguments
The petitioner argued that in C.R. No. 351 of 2020, he was not present at the spot; it was his son who dealt with the complainant, so that crime should have been excluded.
The petitioner argued that in all three relied-upon cases, he was granted bail, and the alleged offences under the Maharashtra Money-Lending (Regulation) Act, 2014 could be dealt with by ordinary law, without invoking the MPDA Act.
The petitioner argued that the in-camera statements of witnesses 'A' and 'B' contained seven blanks each, and the grounds of detention contained details not found in those statements, indicating non-application of mind and violation of the right to make an effective representation.
Ratio Decidendi
The detention order under the MPDA Act is unsustainable when the in-camera statements contain blanks and the grounds of detention contain details not found in those statements, as it indicates non-application of mind and violates the detenu's right to make an effective representation under Article 22(5) of the Constitution.
Judgment Excerpts
On a close scrutiny of both the statements it was noticed that that there are at least seven blanks in both the statements of witnesses 'A' and 'B'.
The statements therefore cannot be said as true and authentic for having several blanks.
Such a variance in the grounds of detention when compared with the contents of in-camera statements... indicates non-application of mind.
Procedural History
On 16.03.2021, the Commissioner of Police, Nagpur, passed a detention order under Section 3(2) of the MPDA Act against the petitioner. On 22.06.2021, the petitioner sent a representation to the State Government through the Superintendent of Yerwada Central Prison. The representation was rejected on 08.04.2021. The petitioner was interviewed by the advisory board at Mumbai through virtual conference. The petitioner then filed the present writ petition challenging the detention order.
Acts & Sections
- 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: Section 3(2)
- Constitution of India: Article 22(5)
- Maharashtra Money-Lending (Regulation) Act, 2014:
