SACHIN SUDHAKAR NIKAM Vs. A N ROY

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the Petitioner-detenu has taken exception to the order of detention dated 12th July, 2004 passed by the Respondent No. 1 under section 3 (2) of the Maharashtra Prevention of dangerous Activities of Slumlords, bootleggers, Drug Offenders and Dangerous persons Act, 1981 (hereinafter referred to as "the said Act of 1981" ).

(2.) THE impugned order of detention is based on an offence registered vide C. R. No. 155 of 2004 with Nehru Nagar police Station, Mumbai. In the said C. R. No. 155 of 2004, the allegation is about commission of an offence punishable under sections 364 (A), 386, 323, 34 of the Indian penal Code, 1860 (hereinafter referred to as "ipc) read with Section 37 (1) (a) of the bombay Police Act, 1951. The order is also based on two in-camera statements of the witnesses A and B.

(3.) SHRI. S. R. Chitnis, the learned senior Counsel appearing on behalf of the petitioner has raised an interesting question of law based on the judgment of the Apex court in the case of (State of Haryana and others Vs. Bhajan Lal and others), reported in 1992 Supreme Court Cases (Cri.) page 426 (hereinafter referred to as "bhajan Lai's case" ). He submitted that under section 2 (b-1) of the said Act of 1981, a dangerous person is a habitual offender who has repeatedly committed either by himself or as a member or a leader of a gang or has habitually attempted to commit or habitually abetted commission of any of the offences punishable under Chapter XVI or XVII of the I. P. C. or the offences punishable under Chapter V of the Arms Act, 1959. He submitted that the impugned order of detention is based on two in-camera statements on the basis of which first information report as required by section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has not been registered and even a competent court has not taken cognizance of any of the offences on the basis of the said two in-camera statements. Placing reliance on the law laid down by the Apex Court in Bhajan lai's case, he submitted that if any information disclosing commission of a cognizable offence is laid before an officer in-charge of a Police Station satisfying the requirements of section 154 (1) of the Code, the said Police Officer has no option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. He submitted that the condition precedent to the commencement of investigation under section 157 (1) of the Code is the existence of the reason to suspect the commission of a cognizable offence which has to be, prima facie, disclosed by the allegations made in the first information laid before the Police officer under section 154 (1) of the Code. He submitted that if the allegations made in the two in-camera statements relied upon by the detaining authority disclosed commission of a cognizable offence, it was the duty of the police Officer concerned to register a case on the basis of such information. He submitted that the registration of a case as per the requirement of section 154 (1) of the said Code is sine-qua-non for the commencement of investigation under section 157 of the Code and as a result of the failure of the concerned officer-to register offences on the basis of the in-camera statements, the acts complained of in the said two in-camera statements cannot be termed as offences. He submitted that as the acts complained of in the two in-camera statements cannot be treated as offences, the impugned order of detention is based only on one solitary F. I. R. He, therefore, placing reliance on the various decisions of the Apex court urged that the petitioner cannot be termed as a dangerous person and therefore, the order of detention passed by the respondent No. 1 is illegal. He submitted that the requirement of section 2 (b-1) of the said act of 1981, is that a person is a dangerous person provided he is habitually committing offences which are described in the said section. He, therefore, submitted that unless it is shown that the Petitioner has committed more than one offence covered by section 2 (b-1), by no stretch of imagination, it can be said that the Petitioner is a habitual offender and therefore, the Petitioner cannot be termed as a dangerous person.