JUDGMENT
D.G. Deshpande, J.
1. Heard Mr. Naresh Khandelwal alongwith Mr.
Tripathi for the petitioner and Mr. I.S. Thakur,
Add.P.P. for the State and detaining authority.
2. The petitioner was detained under Section 3(1)
of the Maharashtra Prevention of Dangerous
Activities of Slumlords, Bootleggers, Drug Offenders
& Dangerous Persons Act, 1981, (hereinafter referred
to as the M.P.D.A. Act) by detention order dated
15.4.2002. The grounds of detention are of the even
date. The detention is challenged on number of
grounds, however, Mr. Naresh Khandelwal alongwith
Mr. Tripathi restricted himself to the ground No.
5(xiii) and other grounds. Since we are allowing
this petition on ground No. 5(xiii), we do not
think it necessary to consider other grounds. We
will be considering one C.R. which is made basis of
the detention order and affects public order vide
C.R. No. 542 of 2001 registered at Saki Naka
Police Station.
3. So far as the facts pertaining to the C.R.
are concerned, they are given in the grounds of
detention in para 4(a)(i). The entire incident that
has taken place on 26.9.2001 and 27.9.2001 in the
office premises of Joshi Group of Company, only one
part of the incident is stated to have taken place
at the main gate when the watchman Dinesh Shrivastava
of the Joshi Group of Company tried to take search
of petitioner detenue and his associates. While
said Dinesh Shrivastav was taking search, the
associates of the petitioner opposed and pushed him
aside and started running towards auto-rikshaw which
was already engaged by them. The search was to be
taken for mobile phone and it is alleged that when
the security guard Dinesh Shrivastav, Santosh Sawant
and Santosh Singh chased the detenue and his
associates, suddenly the associates of the detenue
by name. Samirali and Nandkishore @ Tinku took out a
revolver, pointed it towards Dinesh Shrivastav.
Santosh Sawant and Santosh Singh and threatened them
that if they proceeded further they would be killed.
The learned A.P.P. tried to contend that even
taking out the revolver in open space is sufficient
to create law and order. However, we are not in
agreement with him, because in the next sentence
what is stated in that para is that, due to this
incident Shri Dinesh Shrivastav, Santosh Sawant and
Santosh Singh were terribly frightened. It is,
therefore, clear that at that time nobody was there
on the road and nobody was frightened or feared
because of taking out the revolver. This incident
has occurred on 26.9.2001.
4. So far as incident dated 27.9.2001 is
concerned, which has occurred in the office of the
said Joshi Group of Company and it is about the
conversation on telephone and the threats given.
That incident also does not affect the public order.
However, this will not help the detenue in revoking
the detention order because the two in-camera
statements do show that the incidents stated by
witnesses “A” & “B” are affecting the public order.
5. So far as ground 5(xiii) is concerned, it
is the contention of the detenue as per the C.R.
given above, he got the order of bail on 29.1.2002.
The police could not file chargesheet within the
stipulated period of 60 days. The bail order is
annexed in the compilation at page 435 from which it
is clear that because the chargesheet was not filed
within 60 days, the detenue petitioner was allowed
to be released on bail of Rs. 5000/- cash and one
surety in like amount. The detenue availed of bail
only on 4.3.2002 but the two in-camera statements
were recorded by the police on 5.3.2002 and thus
according to Mr. Tripathi, it is highly suspicious
and the two in-camera statements were recorded only
to detain the detenue under the provisions of
M.P.D.A. Act.
6. Mr. Tripathi further contended that, in
both the statements “A” & “B” what has been narrated
by witnesses “A” & “B” are alleged to have taken
place in the first week of October 2001 and 3rd week
of September, 2001 respectively by witnesses “A” &
“B”. He therefore contended that, firstly the
police could not submit the chargesheet within 60
days. In one matter, C.R. No. 542 of 2001 the
Magistrate granted bail and since the detenue
availed of the bail on 4.3.2002 immediately on the
next date two in-camera statements came to be
recorded and within the month thereafter the
detention order came to be passed. He, therefore,
contended that the in-camera statements are only for
the purpose of claiming the detention order.
7. The learned A.P.P. tried to defend the
detention order by contending that it could be of
co-incident that detenue could avail of the bail on
4.3.2002 and in-camera statements recorded on
5.3.2002. We are not satisfied with this
explanation which is given in the affidavit newly
filed by the detaining authority Mr. M.N. Singh,
the Commissioner of Police. Firstly, the incident
that has been narrated by witnesses “A” & “B”
occurred in the first of October, 2001 and 3rd week
of September, 2001 and the in-camera statements are
recorded on 5.3.2002 i.e. after 5 months and 6
months delay respectively. Even though it cannot be
said that the detenue and his associates had created
terror, the period of 5 and 6 months respectively
does not appear to be justified for witnesses coming
forward to give their statements. Secondly and most
important aspect of recording of the statements
immediately on the next day of the release of the
detenue on bail appears to be highly suspicious. In
Writ Petition No. 530 of 2002 decided by this Court
on 10.7.2002 also a similar contention was raised.
In that case the detenue came to be released on
22.2.2002 by virtue of the bail order dated 7.2.2002
and within two days thereafter i.e. on 24.2.2002
two in-camera statements of witnesses “A” & “B” were
recorded for the incident occurred in October, 2001.
Mr. Tripathi had appeared in that matter also and
had relied upon our Court’s decision in Criminal
Writ Petition No. 66 of 2002 and the Court upheld
the contention of Mr. Tripathi and quash the
detention order.
8. The learned A.P.P. further tried to
contend that the authority which has recorded the
statements of witnesses “A” & “B” may not be aware
that the detenue has availed the bail on 4.3.2002.
Perusal of the additional affidavit filed by the
detaining authority shows that C.R. No. 542 of
2001 was registered by Saki Naka Police Station and
in-camera statements of witnesses A & B were
recorded on 5.3.2002 were also recorded by officer
of the Saki Naka Police Station. In this back
ground, it cannot be allowed to be urged that the
police officer of Saki Naka Police Station were not
aware that the detenue had availed of bail on
4.3.2002. We therefore allow this petition.
9. Petition allowed.
10. Detention order is quashed. Petitioner be
released forthwith, if not required in any other
case.
11. Rule made absolute.