SANTOSH KASHINATH KAMBLE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner challenges the order of detention dated 7 th August, 2015, issued by the Commissioner of Police, Pune City, under Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slum Lords, Bootleggers, Drug -Offenders, Dangerous Persons and Video Pirates Act, 1981 (for short "MPDA Act").

(2.) The petition proceeds to state that the petitioner is the brother of the detenu. Detenu is one Dipak alias D. Baba Kashinath Kamble. The petitioner states that the detention order is vitiated on two counts. The first pertains to the legality and validity of the detention order. It is submitted that the detention order is founded on two C.Rs and two in camera statements. In regard to this, it is submitted by Mr. V.N. Tripathi, learned advocate appearing for the petitioner that these two in camera statements have not been verified. If there is no verification of the in camera statements, then, the same cannot form part of the subjective satisfaction simply because the detaining authority has no material to confirm the incidents that are narrated by such witnesses. The truthfulness can be gathered provided there is a verification of these statements and that statement certifies that the incidents, as narrated, have indeed taken place. In the present case, no such satisfaction has been recorded inasmuch as the two in camera statements, copies of which have been supplied, have not been verified. If they are omitted from consideration, then, what remains as the basis of the subjective satisfaction are the two CRs. In relation to those, Mr. Tripathi would submit that one CR No.3098 of 2015 refers to section 37(1) read with 135 of the Maharashtra Police Act, 1951, and section 7(25) of the Arms Act. The details of the incident resulting in recording of the same are narrated in paragraph 4.1 in the grounds of detention. The argument is that on a plain reading of the F.I.R., it will not be held by any man of prudence that by mere possession of one sharp koyta, the public order is disturbed. Thus, mere possession of any arms without any use and and overt act cannot be the basis for a subjective satisfaction that public order is disturbed. If public order is not disturbed, provisions of MPDA Act are not attracted. The petitioner then submits that if the CR No.3098 of 2015 is thus excluded then remains only one CR being CR No.392 of 2015. That single or solitary CR and the incident referred therein would not lead to the conclusion that the petitioner is a dangerous person within the meaning of section 2(b -1) of the MPDA. Mr. Tripathi would submit that a single solitary incident of the nature referred to will not enable the detaining authority to conclude that a person either by himself or as a member or leader of a gang habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI and XVII of the Indian Penal Code, 1860 or any of the offences punishable under Chapter V of the Arms Act, 1959.

(3.) Mr. Tripathi would submit that Article 22(5) of the Constitution of India guarantees the detenu a right to make an effective representation. A right to make representation means making an effective representation. For a representation to be effective, the petitioner/detenu must be supplied and furnished not only the grounds of detention, but all the documents that are referred to and relied upon in support of the conclusion as above. In the present case, there is a reference and reliance on the two in camera statements. Copies of the in camera statements as verified have not been furnished to the detenu. Such statements, without verification, are not authentic and cannot be relied upon. This could have been pointed out provided they were furnished. In such circumstances, the right to make an effective representation guaranteed to the petitioner under Article 22(5) of the Constitution of India is violated.