HC: Merely carrying a weapon or flourishing a weapon at a person would not be a Menace to Public Order

 

The Bombay High Court allowed a writ petition filed against an order dated 08.06.2022, passed by the Respondent No.2– Commissioner of Police, Amravati, ordering the detention of the Detenu-Umesh, and the order dated 21.07.2022, confirming the Detenu’s order of detention. The Court observed that the subjective satisfaction arrived at by the Authority is unsustainable.

Brief Facts:

An order was passed by Respondent No.2– Commissioner of Police, Amravati, ordering the detention of the Detenu-Umesh @ Bunty s/o Ashok Pawar under the provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous Persons and Video Pirates Act, 1981 (“MPDA Act”).

In appeal, the order was confirmed by Home Department. Aggrieved by the same, the petitioner has approached this Court.

Contentions of the Petitioner: 

The Learned Counsel for Petitioner argued that in both the cases, for which the detenu has been detained, the trial is underway. He argued that in both these incidents, merely because the Detenu brandished a knife, that would by itself not be an act, which would in any manner be prejudicial to the maintenance of public order.

Further, the Counsel contended that the externment order which has been relied upon by the authorities has been quashed and set aside. He also argued that proper verification was necessary by the Detaining Authority of the In-camera statements of witnesses both, as to their truthfulness and unwillingness of the witnesses to give statements out of fear for the Detenu ― which was not done.

Contentions of the Respondent:

The Learned Counsel for the Respondent opposed the petition and argued that the two In-camera witnesses were verified by the Assistant Commissioner of Police by interacting with the witnesses and visiting the spot. The Deputy Commissioner of Police also verified the statements by discussing the same with the Assistant Commissioner of Police and the Detaining Authority verified the statements by discussing the same with the Assistant Commissioner of Police.

Observations of the Court

The Court observed that merely carrying a weapon or flourishing a weapon at a person without demonstrating that there were other citizens around, who would labour under the fear of its use or that the act of the Detenu would cause fear in the hearts of the citizenry would not be a menace to public order. Even if the verification of the two anonymous statements was complied with, the material based on which the verification was done has not been communicated to Detenu.

 

Further, the Court remarked that there has been a total non-compliance of the mandate of law, in that the Authority has neither recorded verification of the content and authenticity of the statements directly from the witnesses, nor has it recorded anywhere that it has verified that those witnesses were unwilling to give statements and testify against the Detenu out of fear. Further, none of this material, recording verification, was ever communicated to the Detenu to enable him to make a representation against it to the concerned Authority.

The decision of the Court:

The Bombay High Court, allowing the petition, held that the subjective satisfaction, arrived at by the Authority based on In-camera statements which are unreliable, unverified, and not even communicated to the Detenu, is unsustainable. 

 

Case Title:  Ashokrao vs The State of Maharashtra & Ors.

Coram: Hon’ble Justice Vinay Joshi and Hon’ble Justice Valmiki SA Menezes

Case no.: CRIMINAL WRIT PETITION NO. 738 OF 2022 

 

Advocate for the Petitioner: Mr. P. V. Navlani

Advocate for the Respondent No.1: Mr. S. S. Doifode

Read Judgment ;