High Court · 2025
Legal Reasoning
wp-14-2025-J.odtstatements were got verified by Sub Divisional Police Officer on28.09.2024 and then it went back to the sponsoring authority. Thereafter,sponsoring authority submitted the proposal on 03.10.2024 to the DCP.The DCP had then forwarded it to the District Magistrate. The DistrictMagistrate has considered those statements and they appear to be inrespect of the alleged incident that had taken place with them in themonth of August 2022. After perusal of those statements, it can be seenthat at the most law and order situation would have arisen.10.Thus, taking into consideration the above observations and thedecisions of the Hon’ble Apex Court, at the most, the statements as wellas the offences allegedly committed would reveal that the petitioner hadcreated law and order situation and not disturbance to the public order.Though the Advisory Board had approved the detention of the petitioner,yet we are of the opinion that there was no material before the detainingauthority to categorize the petitioner as a dangerous person orbootlegger. 11.For the aforesaid reasons, the petition deserves to be allowed.Hence, following order is passed :-ORDERI)The Writ Petition is allowed.[10] wp-14-2025-J.odtII)The detention order dated 24.10.2024 bearing No.2024/RB-Desk-1/Pol-1/MPDA-17 passed by respondent No.2 as well as theapproval order dated 30.10.2024 and the confirmation order dated17.12.2024 passed by respondent No.1, are hereby quashed andset aside.III)Petitioner - Gaurav Rajabhau Kuchekar shall be releasedforthwith, if not required in any other offence.IV)Rule is made absolute in the above terms. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[11]
Arguments
wp-14-2025-J.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.14 OF 2025Gaurav Rajabhau KuchekarAge: 32 years, Occu.: Labour,R/o. Wadarwada, Ambajogai,Tq. Ambajogai, Dist. Beed. .. PetitionerVersus1.The State of MaharashtraThrough Section Officer,Home Department (Special),2nd Floor, Mantralaya, Mumbai-32.2.The District Magistrate,Collector and District MagistrateOffice, Beed. Tq. And Dist. Beed.3.The Superintendent,Central Prison, Harsool,Chhatrapati Sambhajinagar .. Respondents…Mr. Sunita G. Sonawane, Advocate for the petitioner.Mr. G. A. Kulkarni, APP for the respondents/State.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 06 MARCH 2025 PRONOUNCED ON : 18 MARCH 2025JUDGMENT (Per Smt. Vibha Kankanwadi, J.) .Heard learned Advocate Ms. Sunita G. Sonawane for thepetitioner and learned APP Mr. G. A. Kulkarni for respondents – State.[1] wp-14-2025-J.odt2.Rule. Rule made returnable forthwith. The petition is heard finallywith the consent of the learned Advocates for the parties.3.The petitioner challenges the detention order dated 24.10.2024bearing No.2024/RB-Desk-1/Pol-1/MPDA-17 passed by respondentNo.2 as well as the approval order dated 30.10.2024 and theconfirmation order dated 17.12.2024 passed by respondent No.1, byinvoking the powers of this Court under Article 226 of the Constitution ofIndia.4.Learned Advocate for the petitioner has taken us through theimpugned orders and the material which was supplied to the petitionerby the detaining authority after passing of the order. He submits thatthough several offences were registered against the petitioner, yet forthe purpose of passing the impugned order, two offences wereconsidered i.e. Crime No.223 of 2024 registered with Ambajogai CityPolice Station, District Beed for the offences punishable under Sections143, 147, 148, 149, 336, 452, 427, 461, 327, 504, 506 of Indian PenalCode and Crime No.592 of 2024 registered with Ambajogai City PoliceStation, District Beed for the offences punishable under Sections 352,351(2), 3(5) of Bhartiya Nyaya Sanhita, 2023. Learned Advocate for thepetitioner submits that the District Magistrate in his order dated24.10.2024 has considered the offence vide Crime No.223 of 2024[2] wp-14-2025-J.odtregistered with Ambajogai City Police Station, District Beed for theoffence punishable under section 143, 147, 148, 149, 336, 452, 427,461, 327, 504, 506 of Indian Penal Code, however, he has notconsidered when the petitioner came to be released on bail. The bailorder was passed on 21.09.2024. Conditions have been imposed whilegranting bail. The District Magistrate has stated in connection with theaforesaid offence “proposed detenu is absconding and investigation isgoing on in the offense”. That means the sponsoring authority had notappraised the District Magistrate as to when the order of bail wasgranted. The second offence that is considered is under sections 352351(2),3(5) of Bhartiya Nyaya Sanhita, 2023 registered with the samepolice station which is in fact a non cognizable offence. Both theoffences even if taken on their face value would not have led to thepublic order situation. The statements of in-camera witnesses ‘A’ and ‘B’would also lead to law and order situation and not the public order.Therefore, the impugned order deserves to be quashed and set aside.5.Learned Advocate for the petitioner, in support of her submissions,relies on the following decisions :- I)Nilesh Sunil Pendulkar Vs. The District Magistrate,Ahmednagar and others, [Criminal Writ Petition No.1820 of 2023decided by the coordinate Bench of this Court on 29.02.2024];II)Alakshit s/o Rajesh Ambade Vs. The State of Maharashtraand another, [Criminal Writ Petition No.626 of 2022 decided by this[3] wp-14-2025-J.odtCourt Bench at Nagpur on 20.12.2022];III)Ashokrao s/o Uttamrao Pawar Vs. State of Maharashtra andothers, [Criminal Writ Petition No.738 of 2022 decided by this CourtBench at Nagpur on 08.02.2023];IV)Pintu @ Sidharth Bhagwan Devde Vs. The State ofMaharashtra and others, [Criminal Writ Petition No.1501 of 2023decided by the coordinate Bench of this Court on 06.11.2023] and;V)Pappu Kacharu Chorpade Vs. State of Maharashtra andothers, [Criminal Writ Petition No.1107 of 2024 decided by thisCourt on 04.09.2024].6.Per contra, the learned APP strongly supports the action takenagainst the petitioner. He submits that the petitioner is a dangerousperson as defined under Maharashtra Prevention of Dangerous Activitiesof Slumlords, Bootleggers, Drug-Offenders, Dangerous Persons andVideo Pirates Act, 1981 (hereinafter referred to as the “MPDA Act”). Thedetaining authority has relied on the two in-camera statements and thesubjective satisfaction has been arrived at. There is no illegality in theprocedure adopted while recording the in-camera statements of thewitnesses. Due to the terror created by the petitioner, people are notcoming forward to lodge report against him and, therefore, it affects thepublic order. Learned APP relies on the affidavit-in-reply of Mr. AvinashPathak, District Magistrate, Beed, wherein he demonstrates as to whatwas the material before him for taking cognizance. Perusal of the facts in[4] wp-14-2025-J.odtthe FIR vide Crime No.223 of 2024 would show that many accusedpersons had barged into the house of the informant at night time andwhen informant refused to open the door, they had caused damage tothree motorcycles, Swift car, Wagnor car and Auto rickshaw, which wereparked in front of the house. All those vehicles were not belonging to theinformant. That means, they had the intention even to cause damage tothe property belonging to the other public and this is in fact the fifthoffence of the petitioner. Earlier also he had committed offences againstbody. When the preventive action under section 110 of the Code ofCriminal Procedure was not sufficient to curtail the criminal activities ofthe petitioner, the District Magistrate had no option but to declare himdangerous person and detain him under the said orders. The confidentialstatements were recorded on 01.09.2024 and 04.09.2024 respectively.Thereafter, those statements were verified by Sub Divisional PoliceOfficer on 28.09.2024. Then the sponsoring authority submitted theproposal to DCP on 03.10.2024. The DCP then forwarded the same toDistrict Magistrate and the detention order has been passed on24.10.2024. Therefore, there is no delay or the procedural lacuna.Therefore, no fault can be found in the impugned order. 7.Before considering the case, we would like to take note of thelegal position as is emerging in the following decisions :-[5] wp-14-2025-J.odt(i) Nenavath Bujji etc. Vs. State of Telangana and others, [2024 SCCOnLine SC 367], (ii)Kanu Biswas Vs. State of West Bengal, [1972 (3) SCC 831]wherein reference was made to the decision in Dr. Ram ManoharLohia vs. State of Bihar and Ors. [1966 (1) SCR 709];(iii)Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, [1995 (3)SCC 237];(iv)Pushkar Mukherjee and Ors. Vs. The State of West Bengal,[AIR 1970 SC 852];(v) Phulwari Jagdambaprasad Pathak Vs. R. H. Mendonca and Ors.,(2000 (6) SCC 751) and;(vi)Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, [(1981) 4 SCC 647].8.Taking into consideration the legal position as summarized above,it is to be noted herein as to whether the detaining authority whilepassing the impugned order had arrived at the subjective satisfactionand whether the procedure as contemplated has been complied with ornot. In Nenavath Bujji (Supra) itself it has been reiterated by theHon’ble Supreme Court that illegal detention orders cannot be sustainedand, therefore, strict compliance is required to be made, as it is aquestion of liberty of a citizen. At the outset, it is to be noted that we are[6] wp-14-2025-J.odtrequired to confine ourselves to the offences which were considered forpassing the detention order. The previous acts cannot be taken intoconsideration. Further, the first offence is alleged to be committed in2018 and thereafter, three offences were committed in 2022. No actionwas taken for preventive detention at that time, but the action is taken in2024. So, there appears to be no live link for taking action only after thetwo offences in 2024. Even final bond was taken for the preventiveaction under section 110 of the Code of Criminal Procedure on10.04.2024. Why it was not cancelled and the petitioner was not calledupon to deposit the amount is a question, which has been leftunanswered by the District Magistrate. If we consider the facts in CrimeNo.223 of 2024, the incident had taken place around 12:30 a.m. on25.05.2024 when the informant and her family members were sleeping.After hearing shouts, she had opened only the window and saw seven toeight persons holding stones, sticks, axe, sickle etc. Those people hadpelted stones on their house. They were asking the informant as towhere one Amol Chafekar is and they wanted to kill said Amol. When thedoor was not opened, informant was abused and threatened and whilegoing, these persons had caused damage to those vehicles. Thus, in theentire scene, it was not on record before the District Magistrate thatgeneral public had come and they were threatened, for the damage tothe vehicles belonging to other persons. There is offence under section[7] wp-14-2025-J.odt427 of Indian Penal Code. It is then also stated that prior to coming tothe house of informant, all these persons had gone to the Pan shopbelonging to the brother of the informant in Tathagat Chowk and 1500packets of Cigarette, coins of Rs.200/- to Rs.300/- and other articleswere taken away. Even if we take that fact also into consideration, yetthe documents on record do not show that the statements of witnesses,especially the brother of the informant, whose Pan stall was damaged orarticles were taken up, made available to the District Magistrate in whichthere was statement about involvement of public at large. Therefore,only law and order situation was created. Another important point is thatthe learned District Magistrate has stated that the proposed detenu isabsconding when in fact he was already arrested on 20.09.2024 andeven released on bail by the learned Magistrate on the next day that is21.09.2024. Recently, in Joyi Kitty Joseph Vs. Union of India andOrs., [Criminal Appeal No.___ of 2025 (arising out of Special LeavePetition (Crl.) No.16893 of 2024) decided by the Hon’ble SupremeCourt on 06.03.2025], reliance has been placed on the decision inAmeena Begum v. State of Telangana and others, [(2023) 9 SCC587] and it has been observed that preventive detention is impermissiblewhen the ordinary law of the land is sufficient to deal with the situationwas per incuriam to the Constitution Bench decision in Haradhan Sahavs. State of W.B. [(1975) 3 SCC 198], in the limited judicial review[8] wp-14-2025-J.odtavailable to constitutional courts in preventive detention matters.However, in Ameena Begum (Supra), the Hon’ble Supreme Courtexplained the true distinction between a threat to “law and order” andacts “prejudicial to public order” and it is stated that it cannot bedetermined merely by the nature or quality of the act complained of, butin the proper degree and extent of its impact on the society. Further, it isobserved that “When bail was granted by the jurisdictional Court, that tooon conditions, the detaining authority ought to have examined whetherthey were sufficient to curb the evil of further indulgence in identicalactivities; which is the very basis of the preventive detention ordered.The detention order being silent on that aspect, we interfere with thedetention order only on the ground of the detaining authority having notlooked into the conditions imposed by the Magistrate while granting bailfor the very same offence; the allegations in which also have led to thepreventive detention, assailed herein, to enter a satisfaction as towhether those conditions are sufficient or not to restrain the detenu fromindulging in further like activities.” Therefore the detention order on the basis of this material iserroneous. The other offence that has been considered is noncognizable offence. 9.Perusal of the in-camera statements would show that thosestatements were recorded on 01.09.2024 and 04.09.2024. Those[9]